The status of the Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing of employees for employers with at least 100 employees, issued by the Occupational Safety and Health Administration (OSHA) is shrouded in uncertainty right now after the U.S. Court of Appeals for the Fifth Circuit ordered a continuation of that court’s stay of the ETS on November 12.
The court instructed OSHA to take “no steps to implement or enforce the Mandate until further notice by Court Order.” The Department of Labor has responded by posting the following message on its website: “OSHA has suspended its activities related to the implementation and enforcement of the ETS pending future development in the litigation.”
(Please note, the OSHA ETS suspended by the Fifth Circuit is distinct from the OSHA ETS in June of 2021 that focused on health care workers. See NAHC Report coverage here.)
Providers are wondering if they should still work towards compliance despite the news of the suspension. Employers do not want to find themselves in a position where they are not ready should the situation change and may, therefore, decide to continue their plans despite the suspension. Some employers are taking a wait and see approach, but they should be prepared to respond quickly to achieve compliance that should be necessary in the future. It is possible the ETS could be modified and the plans for compliance may change as a result.
Due to the uncertainty at this time, providers should stay abreast of the legal activity and potential outcomes and and stay tuned to NAHC Report for updates.