OSHA Suspends ETS Enforcement Pending Outcome of Litigation

Just a few days after issuing its long awaited emergency temporary standard (ETS), OSHA announced that it is “suspending activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The announcement follows a Fifth Circuit Court of Appeals order, issued on November 12, 2021, staying enforcement of the ETS pending a final ruling on its legality.

What happens next?

Similar litigation has been filed across the country challenging OSHA’s authority to issue the ETS. The cases will be consolidated and assigned randomly, via lottery, to one circuit court to hear appeals of the numerous challenges. Any outcome may then be appealed to the U.S. Supreme Court.

What does this mean for employers?

The Fifth Circuit order bars OSHA from taking any steps to implement or enforce the ETS and OSHA’s announcement makes clear that it has suspended activities pending further developments in litigation. In the interim, employers should continue to abide by any applicable state, local, or agency rules or guidance addressing COVID-19 workplace safety requirements. They should also keep in mind that the stay does not mean that another court may ultimately rule differently. Accordingly, employers should still review and understand the ETS and consider how best to implement it while also monitoring the progress of the challenges in court.

Importantly, employers who are federal contractors or health care providers should not make decisions based on OSHA’s announcement. The CMS Interim Final Rule and Federal Contractor Mandate have not been paused.

Hinckley Allen’s Labor & Employment group will continue to monitor and provide updates as the challenges proceed through the court system. If you have any questions, please contact your Hinckley Allen Labor & Employment attorney.

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