Access flooding information on Disaster Resources.

November 12, 2021

Fifth Circuit Issues Temporary Stay of Fed/OSHA ETS

Announced November 5, 2021 and set to take effect January 4, 2022, OSHA’s newly announced COVID-19 Emergency Temporary Standards (ETS) are facing multiple legal challenges across the country. The same day the new ETS rules were announced, employers from supermarkets, restaurants, staffing agencies and others filed suit in Federal Court (Fifth Circuit) alleging OSHA has exceeded its authority and that the ETS rules are unconstitutional. One day later, the court issued an order staying the new rule.  

The newly enacted ETS will require employers of 100 or more workers to ensure they are fully vaccinated no later than January 4, 2022.  Workers not vaccinated by that date will be required to undergo weekly testing and wear a mask in the workplace. An exception exists for those who work exclusively in “outdoor employment” (e.g., farmworkers) and those who work remotely or have no contact with co-workers.  

Because similar challenges were filed in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits, the cases will be consolidated and transferred to a single circuit court in accordance with federal law.i It is likely the current stay order will remain in place while litigation is pending. States such as California and Arizona that assume responsibility for developing and enforcing occupational safety and health standards have 30 days to adopt and enforce state OSHA standards that are at least as effective as the new federal OSHA’s requirements. 

Nonetheless, employers should begin contemplating what steps may need to be taken if the ETS is allowed to move forward. For example, what policies/procedures will need to be put into place to track vaccination status, how will testing protocols be implemented, and whether to pay for weekly testing for employees who choose not to get vaccinated.  

OSHA has provided additional information through their recently published Frequently Asked Questions

Members with questions about OSHA’s ETS should contact Western Growers.