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Court temporarily halts OSHA Test-or-Vax ETS

Businesses should not assume the rule will be tossed out

Posted November 9, 2021

It didn’t take long for legal action to be filed against OSHA’s Emergency Temporary Standard (ETS), requiring businesses with 100 or more employees to require employees to be 1) fully vaccinated, or 2) undergo weekly testing and wear a face covering indoors. Several businesses filed a petition in the Fifth Circuit Court of Appeals, arguing OSHA overstepped its Constitutional authority in issuing the rule.

The court agreed to temporarily halt the rule, until both sides can present their arguments.

OSHA must respond by the end of day today (11/8), and the petitioners then have until the end of the day tomorrow (11/9) to respond.

The court will likely rule quickly, given the nature of the issue.

No matter which way the court rules, the decision is likely to be appealed.

To complicate matters, several suits have been filed in other jurisdictions. These cases may ultimately be consolidated with the Fifth Circuit case and heard before a special counsel of judges or the Supreme Court.

So, for now, it’s a waiting game that will likely see rulings and appeals for the next couple of weeks. Practically, it doesn’t change the scheduled enforcement of the rule, so long as all is settled prior to the first compliance date of December 5.

Businesses should definitely not assume the rule will be tossed out. There’s a decent chance that after the dust settles it will still stand. If so, it will be effective immediately, likely with the original compliance dates still the same. Businesses should at least plan their implementation strategy, in case the rule does survive the legal challenges. You don’t want to try to put together your policies and plans hurriedly.

This article was written by Travis Rhoden of J. J. Keller & Associates, Inc.

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