OSHA Announces Non-Enforcement of ETS Rule, But Will Push Ahead in Litigation

  • Nov 17, 2021
  • OSHA
  • Grant T. Collins

Today, the Occupational Safety and Health Administration (“OSHA”) published on its website that, in accordance with the order from the Fifth Circuit, it has “suspended” all enforcement activities with respect to the Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”).  At the same time, though, OSHA’s statement made clear that it intends to push forward with litigation over the OSHA ETS Rule.

Here’s the text on OSHA’s website:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay [the OSHA ETS Rule]. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

As we reported, last Friday, the Fifth Circuit issued an order staying enforcement of the OSHA ETS Rule.  The notice on OSHA’s website likely serves as the agency’s attempt (albeit half-hearted) at complying with the court’s order.  The Fifth Circuit’s order will remain in place until it is lifted or made permanent by the Sixth Circuit.  This is because, on Tuesday, the Judicial Panel on Multidistrict Litigation consolidated the legal challenges to the OSHA ETS Rule in the Sixth Circuit.

Bottom Line

OSHA’s announcement should not be construed as the agency “giving up” on the OSHA ETS Rule.  At most, it shows that the agency is serious about complying with the Fifth Circuit’s order while it pushes ahead in the litigation in the Sixth Circuit to lift the stay and allow the agency to move forward with enforcement by the December 6 and January 4 deadlines.

Needless to say, there is a significant amount of uncertainty as to whether and when employers will need to comply with the OSHA ETS Rule.  At any time, the Sixth Circuit could issue an order lifting the stay and OSHA could (in theory at least) push forward with the existing deadlines.  Therefore, we recommend that covered employers continue working on all pre-implementation steps (such as drafting policies and procedures, and potentially surveying employees on vaccination status) so that you will be able to quickly implement your policy and be compliant with the OSHA ETS Rule if and when the stay is lifted.

We will continue to monitor this situation as it develops.