UPDATE: On Friday, Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit confirmed its stay on OSHA's emergency temporary standard (ETS) on COVID-19 vaccination and testing, ordering the agency to "take no steps to implement or enforce" the ETS "until further court order." As a result, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
On Saturday, Nov. 6, 2021, the Fifth Circuit Court of Appeals issued a temporary stay blocking OSHA's (ETS). Many U.S. states have also filed lawsuits to challenge the ETS.
ASSP has received several questions about the impact of the stay on other mandates as well as on state-plan states. We asked Barry Spurlock, J.D., CSP, partner with Crump Spurlock, associate professor at Eastern Kentucky University and Government Affairs Chair for ASSP's Louisville Chapter, and Courtney Malveaux, principal, Jackson Lewis P.C., and Government Affairs Chair for ASSP's Colonial Virginia Chapter, to share their legal insight.
Is the “stay” only for the OSHA ETS? Does it affect rules covering federal contractors, healthcare workers or federal employees?
The Fifth Circuit’s Order specifies it applies to the Nov. 5, 2021, COVID-19 ETS and specifically refers to that ETS as “the Mandate.” The ETS explicitly exempts employers covered by the executive order for federal contractors (Safer Federal Workforce Task Force COVID-19 Workplace Safety) and employers subject to the Healthcare ETS. The stay for the Nov. 5 ETS does not impact these two groups.
Other lawsuits, such as those filed by attorney generals in Kentucky, Ohio and Tennessee involve the federal contractor issues and arguments are pending (as of this writing) and do not involve the ETS for which the Fifth Circuit’s stay applies. So, it is full steam ahead for federal contractor and healthcare employers.
Occupational safety and health (OSH) professionals should be aware that the legal challenges to the ETS will essentially be consolidated and transferred to one circuit court pursuant to the federal rules concerning multidistrict litigation. Essentially, this will cause the cases to be assigned to one of the circuits in which there is pending litigation. This will happen through a random, lottery system. Legal challenges have been filed several circuits, including the Fifth, Sixth, Seventh, Eighth and Eleventh circuits.
Given this, OSH professionals should be aware that the selected circuit could lift the emergency stay; this includes the Fifth Circuit lifting the stay it issued. When one examines prior legal challenges to emergency temporary standards, these stays generally remain in place while the merits of the cases are decided.
How does the stay impact state-plan-states? Could a state plan implement a COVID-19 rule even though the federal ETS is facing a stay?
With respect to state plans, the stay does not, generally speaking, prevent state plans from enacting their own standards. Some states, such as Virginia, had already enacted their own temporary rules, followed by permanent standards, but they generally address hazard controls, not vaccination/testing requirements. All state programs are supposed to enact an ETS that is “at least as effective” as the corresponding federal OSHA ETS within 30 days, and are supposed to notify federal OSHA within 15 days of their plan of action.
Most state plans enact standards that are identical to federal standards while several states (e.g., California, Washington, Oregon) often exceed federal requirements, and may include more protective measures. OSH professionals should know that for some state plans, the respective states’ legislatures/state OSH acts mandate their state plans cannot adopt rules more stringent than the corresponding/related federal standard. Indiana is a long-standing example of this, and Kentucky became another during this last legislative session.
All state plans are required to promulgate and enforce standards in a manner that is as least as effective as OSHA’s (which in this case is nothing with the ETS stayed). OSHA’s remedy when a state plan doesn't enact and enforce standards in this manner is to revoke the state plan, a long and onerous process that OSHA has foregone until recently. The agency has taken steps to revoke state plan status for Arizona, South Carolina and Utah over their refusal to promulgate healthcare ETSs, and the process may outlive the effort.
So, for state plans like these, any ETSs they put forth will depend greatly on the fate of the federal OSHA ETS. This doesn’t mean there is no background/prep work going on within the state programs that already have standards and those that will need to put forth an ETS quickly.
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Throughout the prolonged pandemic, we have provided education for our members on the latest workplace safety and health guidance while helping safety professionals prepare for OSHA emergency temporary standards.