OSHA ETS Remains Suspended As Litigation Extends Beyond 1st Deadline | Lowndes


The OSHA vaccination or testing mandate for large employers (the “ETS”) is expected to remain in effect until the first deadline, yesterday, December 6, 2021. This first deadline would have required employers to have 100 employees or more to start complying with all ETSs. requirements (apart from applying the immunize or test portion of the ETS), such as record keeping and masking of unvaccinated employees (a summary of these requirements can be read here).

November 12, 2021, as detailed here, the Fifth Circuit Court of Appeals suspended the ETS. Shortly thereafter, on November 16, 2021, the ETS challenges (which had been filed in each circuit appeal court) were consolidated in the Cincinnati Sixth Court of Appeals. Seeking to implement the ETS as soon as possible, OSHA has filed a motion to lift the suspension. Although the Sixth Circuit has yet to rule on this motion, it has essentially chosen to keep the suspension in place while voting on the OSHA motion by issuing an information schedule requiring that any response to the motion of OSHA to lift the suspension be filed by December 7 and setting December 10 as the deadline for responses to responses. These dates go beyond the initial ETS December 6 deadline, noted above, and effectively extend the ETS stay.

In the meantime, in an order issued on December 3, 2021, the Sixth Circuit also dismissed two transfer requests, one from applicants seeking to transfer all ETS challenges to the Fifth Circuit Court of Appeal. (which granted the stay in the first instance) and the other, filed by the AFL-CIO, requesting transfer to the DC Circuit Court of Appeals. The Sixth Circuit also appears ready to settle ETS disputes with a panel of three judges, which is standard procedure. Indeed, in the same order of December 3, the court rejected a request to stay the case pending ruling on several requests filed by petitioners asking the court to hear the case en banc, that is to say – say in front of all the judges sitting in the court (enumerated here).

Ultimately, that means for employers that the OSHA ETS stays and will stay until at least December 10 (and likely longer). Even if the ETS suspension is lifted, it is likely that OSHA will need to publish new ETS compliance dates, so employers may wish to remain vigilant and take note of any new compliance deadlines. in such a scenario.

In other news regarding vaccine warrants, employers will also note that the vaccine warrant issued by the Centers for Medicaid and Medicare Services (“CMS warrant”) has also been suspended pending nationwide litigation. on November 30, 2021 by a federal district court in Louisiana. The vaccination requirement for federal contractors was not suspended in Florida (although it was suspended in Kentucky, Ohio and Tennessee by a Kentucky federal district court), but the challenge by Florida of the contractor’s mandate should be heard in front of a federal judge in Tampa. , Florida on December 7, 2021.

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