Federal Court Extends Stay of OSHA Employer Vaccine Mandate

Late last week, the 5th Circuit Court of Appeals upheld its stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to require their employees to either get vaccinated against COVID-19 or be subject to weekly testing. The court stated in its ruling that those challenging the ETS “show a great likelihood of success on the merits” of their case and that OSHA shall “take no steps to implement or enforce” the ETS.

Since the release of OSHA’s ETS on November 4, numerous lawsuits have been filed challenging its legality. Due to the 5th Circuit Court of Appeals’ ruling and the other pending cases in different courts around the country, the U.S. Judicial Panel on Multidistrict Litigation is expected to issue a decision this week on consolidating all the cases into one case to be heard in one court. The court in which the consolidated case will be decided will determine the status of the current stay on the ETS. Should the case be heard by a court favorable to OSHA, the stay could be lifted next week. Conversely, if the case lands in a court sympathetic to the petitioners, the stay could likely remain. Regardless of outcome though, it is highly likely that whichever side loses, it will appeal to the Supreme Court for a final decision. A final decision is expected by the end of November.

Further, in light of the fluid nature of the ETS litigation and should the ETS be upheld by the courts, NRMCA has continued its advocacy efforts to attain beneficial industry outcomes. To this end, earlier this week NRMCA filed comments with OSHA formally requesting an extension of the comment period on the ETS. The original comment period was only granted for 30 days, ending on December 6. NRMCA has asked OSHA for an additional 60 days to comment, which would put the comment deadline into early February 2022. NRMCA argued that, “such a rulemaking as extensive as this, in order for ETS stakeholders to comment comprehensively, an extension of the comment period is warranted. Additional time will allow covered employers to adequately assess any issues, points of concern and other problematic instances as they arise, while simultaneously attempting to implement the ETS.”

NRMCA will continue to advocate on and monitor the ETS while updating the membership on its continual changing status.

Click here for more information on how the ETS could impact the ready mixed concrete industry and here to review the specifics of the ETS. You may also contact Kevin Walgenbach at kwalgenbach@nrmca.org.