Update on Federal OSHA’s ETS for COVID-19

Unless you’ve been fortunate enough to be hiking the Appalachian Trail, taking a cruise or enjoying some other leisurely activity that gives you the privilege of being away from technology, you’re very likely aware that Federal OSHA released its much anticipated and very controversial Emergency Temporary Standard (“ETS”) on COVID-19. Since releasing the ETS, multiple lawsuits have been filed involving more plaintiffs than one cares to count. On Saturday, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay on enforcement of the ETS, and we could see more decisions from other Federal courts in the coming days.

Society is watching developments with the COVID-19 ETS closely, and posting information as expeditiously as possible to its website. Society will be offering a panel discussion on OSHA’s COVID 19 ETS soon, so be watching for details. In the meantime, here’s a link to the ASSP website detailing the release of the ETS as well as some additional information and important links: https://www.assp.org/news-and-articles/osha-issues-emergency-temporary-standard-on-vaccination-and-testing.

The Order from the Fifth Circuit just deals with the Petitioners’ motion for an emergency stay on enforcement of the ETS. To be brief, the Petitioners in this case consist of numerous for profit and non-profit organizations/employers, individuals, The State of South Carolina, and The State of Utah. In their per curiam order (meaning all three judges hearing the matter for Fifth Circuit Court of Appeals agree), the three judges issued the following in the body of the Order (procedural footnotes omitted):

“Before Jones, Duncan, and Engelhardt, Circuit Judges. Per Curiam: Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) pending expedited judicial review. Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court. The Government shall respond to the petitioners’ motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.” [Emphasis added.]

Louisville ASSP Members should be aware that the legal challenges to the ETS will essentially be consolidated and transferred to one Circuit Court pursuant to the Federal rules concerning multidistrict litigation. Essentially, this will cause the cases to be assigned to one of the Circuits in which there is pending litigation. This will happen through a random, lottery system. Legal challenges have been filed several circuits, including the Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits. Given this, Members should be aware that emergency stays such as this one are temporary in nature, and the selected Circuit could lift the emergency stay; this includes the Fifth Circuit lifting the stay it issued. Still, when one examines prior legal challenges to ETSs, these stays generally remain in place while the merits of the cases are decided.

You may be wondering what impact this Fifth Circuit Order has on the majority of the Louisville Chapter membership since most deal with Kentucky and Indiana state plans and not Federal OSHA. After recent changes to the law in Kentucky (H.B. 475), the Kentucky Labor Cabinet cannot adopt more stringent state OSH standards than the related Federal standard(s).  This has long been the case in Indiana. Still, even state OSHA plans like Kentucky and Indiana are expected to implement an ETS/standard that is “at least as effective” as the Federal ETS within 30 days. Thus, the current and looming legal challenges to Federal OSHA’s COVID 19 ETS will most certainly impact Kentucky and Indiana’s adoption and enforcement of the Federal COVID 19 ETS. At the end of the day, Kentucky and Indiana employers should diligently track what is happening with the Federal OSHA ETS.

As developments emerge and information becomes available, Society and the Louisville Chapter Government Affairs will pass along substantive updates as quickly as reasonably possible.

Barry Spurlock, JD, CSP
Government Affairs Chair
Louisville ASSP Chapter