As previously reported, on November 5, 2021, the federal Occupational Safety and Health Administration (OSHA) published an emergency temporary standard in the Federal Register which required employers with 100 or more employees nationwide to implement a written workplace COVID-19 vaccination policy that complied with the rules set forth in the standard. The emergency temporary standard allows employers to either require employees to be vaccinated with narrow exceptions or require employees to vaccinate and those who choose not to vaccinate to undergo weekly COVID-19 testing. The standard also contained additional rules about vaccination status verification and recordkeeping. Now things have gotten more complicated for employers.
The day after the emergency temporary standard was published, a coalition of petitioners filed for an emergency stay halting implementation and enforcement of the standard with the 5th Circuit Court of Appeals, which the court granted. Nearly a week later, on November 12, the 5th Circuit affirmed its decision to stay implementation and enforcement of the emergency temporary standard to allow for an “adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” In other words, the 5th Circuit ordered that OSHA couldn’t take any steps towards implementing or enforcing the standard until the standard’s legality was properly resolved.
While the 5th Circuit was weighing one petition challenging the validity of the emergency temporary standard, challenges were brought in the other 11 judicial circuits throughout the country. When this occurs, all of the petitions are consolidated, and the United States Judicial Panel on Multidistrict Litigation (JPML) holds a lottery to determine which one of the judicial circuits will hear the consolidated petitions. On November 16, 2021, the JPML held its lottery, and the Sixth Circuit Court of Appeals was selected to hear all challenges related to the emergency temporary standard.
As a result of the 5th Circuit’s order, and the ongoing litigation now with the 6th Circuit, OSHA announced on its emergency temporary standard fact page that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The California Division of Occupational Safety and Health (Cal/OSHA), which was scheduled to discuss implementing its own emergency temporary standard to conform with OSHA’s as required by the state plan rules today, is now likely to table that discussion due to the uncertainty around this litigation.
Employers, who now understandably feel whiplashed by these ever-changing developments, are encouraged to stay up-to-date on this fast-evolving story and consult with legal counsel about any steps they should take at this time.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
CalChamber members can read more about Cal/OSHA’s current COVID-19 emergency temporary standard, which directs employers to address a variety of issues related to COVID-19 in the workplace, in IIPP and COVID-19 in the HR Library. Not a member? See how CalChamber can help you.