Update On OSHA’s ETS For Larger Employers – The Stay And What’s Next

Volume: 20 | Issue: 69
November 15, 2021

As you know, on November 5, 2021 the federal Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) requiring larger employers (with 100 or more employees) to adopt a vaccination program in accord with President Biden’s September direction. Numerous lawsuits were immediately filed to challenge the ETS, and one of those lawsuits resulted in a court temporarily staying the ETS.

So where are we now?

First, the stay has been extended. On Friday, November 12, the Fifth Circuit Court issued an order continuing its stay of the ETS until a final ruling can be made. The Court issued a decision explaining its view that the ETS is likely unconstitutional. It has ordered that OSHA “take no steps to implement or enforce the [ETS] until further court order.” In response, OSHA “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

While the Fifth Circuit Court’s ruling is important, it is not the end of the story. Due to the number of lawsuits filed challenging OSHA’s ETS, federal law requires the cases to be submitted to a judicial panel on multidistrict litigation. This panel will then designate by random selection one court to take over all of the cases. Once this court is designated, it will consolidate the cases. This court can modify, revoke, or extend the stay issued by the Fifth Circuit Court of Appeals. It will also establish a briefing schedule, consider the arguments of the parties, and make its ruling. The ruling of this court will then likely be appealed to the U.S. Supreme Court. As such, we will not know the final outcome on the viability of the ETS for several weeks.

What do Nevada employers do now?

Because Nevada has its own State OSHA Plan, it has 30 days from the ETS’s publication 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.” It must communicate to OSHA what action it will take within 15 days. It is not clear whether the stay discussed above impacts Nevada OSHA’s deadlines.

It is clear, however, that Nevada employers currently have no obligation to comply with OSHA’s ETS. Thus, Nevada employers have a choice – wait and see what happens or assume the ETS is just on pause and continue getting ready to comply with it. KZA attorneys are available to help you analyze the pros and cons of each decision and move forward with whatever you decide.

Finally, please remember that Nevada’s paid leave statute now requires employers with 50 or more employees to provide an additional amount of paid leave to employees to receive a COVID-19 vaccine (unless the vaccine is given on the employer’s premises during the employee’s regular work hours).

As always, we will continue to keep you posted on updates in this area. 

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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