November 17, 2021
It has been a turbulent November for the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS). On November 4, 2021, OSHA announced its long-awaited ETS requiring employers of 100 or more employees to implement a written COVID-19 vaccination policy, gather vaccination status information on employees, as well as perform other tasks, by December 5, 2021, and require weekly COVID-19 testing and masking for all employees who fail to become fully-vaccinated by January 4, 2022. Shortly thereafter, petitions were filed throughout the federal circuit courts of appeal challenging the ETS. On November 6, 2021, a three-judge panel of the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas issued the first order temporarily staying the implementation of the ETS, “pending further action by [the] court,” and citing “grave and constitutional issues.” Following an expedited briefing period, on November 12, 2021, the Fifth Circuit issued a 22-page order enjoining OSHA from taking further steps to implement or enforce the ETS.
Due to the Fifth Circuit’s ruling, on Monday, November 15, 2021, OSHA “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
NOW WHAT?
The Fifth Circuit Court of Appeals will not have the final say on the future of the ETS. As similar challenges to the ETS were pending in the other 11 federal circuit courts of appeal, federal law required the cases to be consolidated and heard by one court chosen at random through a “lottery.” On November 16, 2021, the Judicial Panel on Multidistrict Litigation conducted the lottery by placing twelve ping pong balls, representing the 12 circuit courts, in a wooden drum. The ping pong ball representing the Sixth Circuit Court of Appeals was drawn at random. The Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio, and Tennessee, will decide whether to lift the stay issued by the Fifth Circuit Court of Appeals.
For now, it remains unclear whether the compliance deadlines of the ETS will still apply given the current status of the ETS and the pending litigation. Even if the Sixth Circuit rules quickly, its decision will likely be appealed and eventually make its way to the United States Supreme Court, making compliance by December 4, 2021 and January 4, 2022 nearly impossible. However, as OSHA has voluntarily suspended all activities related to the implementation and enforcement of the ETS, there is a possibility that OSHA will extend these deadlines for compliance depending on the outcome of the litigation. Nevertheless, this question remains unanswered for now and employers should be ready to potentially comply with the ETS requirements on short notice.
DOES THIS IMPACT THE CMS RULE?
For healthcare providers who may be covered by the Centers for Medicare and Medicaid Services (CMS) rule, the Fifth Circuit Court of Appeals decision and subsequent OSHA ETS suspension has no impact on the CMS rule. Accordingly, all staff at a healthcare provider covered by the CMS rule must receive the first dose of a primary series or single dose of COVID-19 vaccine by December 5, 2021, absent an exemption, and must complete the vaccination series by January 4, 2022 to ensure compliance. To read our summary of the CMS rule, click here.
