New Private Sector COVID-19 ETS Held Up in Court

Released in early November, President Biden’s new COVID-19 emergency temporary standards continue to be the subject of intense legal debate. Under the new ETS, private sector employers with more than 100 organization-wide, full-time employees would be subject to new COVID-19 testing and reporting requirements. While not a “hard vaccine” mandate, which would outright require employees to be vaccinated, the Biden administration has opted for a “soft” approach where employers must ask for an employee’s vaccination status. If an employee is not and chooses to remain unvaccinated, they must undergo routine testing before being able to report to work each week. Moreover, employers would need to develop and educate staff on a formal testing, reporting and PPE plan.

The new ETS largely follow suit from the earlier health care sector-specific ETS that was announced this past summer. Shortly after the standards were published, though, the U.S. Fifth Circuit Court of Appeals issued an order staying enforcement and implementation. Now, the case sits in the Sixth Circuit and could potentially make its way to the Supreme Court. 

If the stay is ultimately lifted by the Sixth Circuit or the Supreme Court, there is no automatic tolling of the implementation deadlines for the period of time in which the ETS had been stayed. This means that if the Sixth acts before the December 6 implementation date to rescind the stay put in place by the Fifth Circuit, OSHA could technically standby that December 6 deadline and expect employers to have completed their vaccine verification process, rolled out a Vaccination, Testing, and Face Coverings policy, set up a process to provide PTO for getting vaccination and paid sick leave for recovery from vaccinations, etc. If the stay is lifted after December 6, technically the ETS could immediately go into effect.

ILTA continues to work with Conn Maciel Carey LLP, a law firm specializing in OSHA safety regulations, as part of a COVID-19 legal working group. The firm is currently drafting comments for the ETS and they will be circulated to ILTA’s Health & Safety Subcommittee when finalized.