Blogs | Environmental and Energy Law Solutions

On December 27, 2021, OSHA issued a statement to address the confusion surrounding the status of the Healthcare Emergency Temporary Standard (the “Healthcare ETS”) implemented on June 21, 2021.  The confusion arose because the Healthcare ETS was a temporary standard that was intended to be effective until it was replaced by a permanent standard.  However, the OSH Act provides that the permanent standard should be promulgated within six (6) months from the adoption of the temporary standard.  This means that OSHA needed to implement a permanent standard to replace the Healthcare ETS by December 20, 2021.  This did not occur.

Employers with 100 or more employees have until January 10, 2022, to implement the obligations required under the mandatory vaccinate or test requirements in OSHA’s Emergency Temporary Standard issued on November 4, 2021, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021).  Even though the ETS is now effective, the agency is granting a short time period for companies to satisfy the requirements.

On November 12, 2021, the Fifth Circuit Court of Appeals issued a decision in which it reaffirmed its prior temporary injunction against implementation or enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard (the “ETS”) mandating COVID-19 vaccination and testing. The November 12 decision reaffirmed a prior stay issued on November 6^th and found that the ETS was both overbroad and under-inclusive. The court found the ETS overbroad because it failed to consider that COVID-19 is “more dangerous to some employees than to other employees.” BST Holdings, L.L.C. et al. v. Occupational Safety and Health Administration, et al., No. 21-60845, slip. op at 13. The court found it underinclusive because even the most vulnerable workers would draw no protection from the ETS if the company employs 99 employees or fewer. Id. at 15. It further ordered the agency to “take no steps to implement or enforce” the ETS until further court order.

On November 6, 2021, the Fifth Circuit issued a temporary injunction on OSHA’s ETS for employers with 100 or more employees. The Fifth Circuit’s Order is brief citing “grave statutory and constitutional issues” with the ETS. The Court ordered the government to respond to the motion for a permanent injunction by 5:00 p.m. today, November 8, 2021. The petitioners have until tomorrow, November 9, 2021, at 5:00 p.m. to provide a reply to the government’s response.

On November 4, 2021, OSHA issued its 490-page document setting out its Emergency Temporary Standard for COVID-19 Vaccination and Testing, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021).  The ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy by December 5, 2021, with all covered employees vaccinated by no later than January 4, 2022.  Alternatively, the ETS permits covered employers to instead adopt a policy requiring employees to either get vaccinated or elect, in lieu of vaccination, to wear a face covering at work and undergo weekly COVID-19 testing. The ETS imposes many additional safety protocols, recordkeeping, and disclosure requirements for covered employers and employees beyond mandatory vaccination and testing.

OSHA issued the long-awaited ETS requiring employers with 100 or more employees to mandate that employees either get the COVID-19 vaccine or undergo weekly COVID-19 testing.  The Spencer Fane Labor and Employment Attorneys are analyzing the ETS and will be providing a more in-depth client alert shortly, in addition to hosting an educational WorkSmarts™ webinar on Wednesday, November 10 from 2:00pm-3:00pm CT.  In the meantime, here are a few highlights: