OSHA’s Vaccination ETS For Larger Employers Temporarily Stayed

Volume: 20 | Issue: 67
November 8, 2021

On Friday, November 5, the federal Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) requiring larger employers to adopt a vaccination program in accord with President Biden’s September direction.

In the Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi, a group of employers have challenged the legality of the ETS. Some of those employers filed an Emergency Motion to Stay enforcement of the ETS until the Court could consider their arguments. On Saturday, November 6, the Fifth Circuit Court granted a temporary stay of the ETS “[b]ecause the petitions give cause to believe there are grave statutory and constitutional issues with” the ETS. While the Court did not specify whether the stay was nationwide and thereby impacted all employers, the motion did seek a nationwide stay. The Fifth Circuit Court ordered OSHA to file its arguments in support of the ETS by today, November 8.

Other lawsuits have also been filed in other jurisdictions; these actions may be consolidated before one court for a decision. OSHA has not yet issued any statement about these lawsuits or the stay. Should the stay be lifted, OSHA will not likely extend employers’ deadlines to comply with the ETS. Moreover, despite the Fifth Circuit Court’s quick action so far, these matters will take some time to work their way through the courts.

While keeping an eye on the Fifth Circuit Court and these other lawsuits, Nevada employers should be watching for NV OSHA to state whether it will adopt the ETS. Because NV has its own State OSHA Plan, it has 30 days to “either amend its standards to be identical or ‘at least as effective as’ the new standard, or show that an existing State Plan standard covering this area is ‘at least as effective’ as the new Federal standard.” We are hopeful that NV OSHA will give Nevada employers some direction and guidance early this week.

We recommend that Nevada employers continue to expect the ETS to become effective in Nevada and continue to move in this direction. If you have not already published a vaccination policy for your employees, however, you should wait to publish it until you have a clearer understanding of what will be required in Nevada. To discuss specific questions and concerns, please contact a KZA attorney.

As always, we will keep you posted on developments.  

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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