Multiple Lawsuits Place ETS On Hold.  How Should You Respond?

We speculated when the Emergency Temporary Standard (“ETS”) mandating vaccines or COVID testing for businesses with more than 100 employees was announced, that there were bound to be lawsuits to follow soon after.  Well, after about two hours, that proved to be correct.

For those who did not check out our write up on the ETS last week, OSHA is mandating businesses with 100 or more employees to require that their employees who are neither working exclusively from home or exclusively outside to either be vaccinated or subject themselves to weekly COVID-19 testing.  Employers were not required to pay for employee testing or vaccination, but were required to pay employees for receiving the vaccine and recovering from any after-effects of the vaccines.  Minnesota law usually requires employers to pay for any medical examination they require employees take to attend work.  In addition, based on previous guidance from the Department of Labor, employers are required to pay employees for the time spent getting tested.

Employers failing to comply with the standard on vaccination within 30 days were to be fined for their noncompliance, and have 60 days to commence a testing program for employees.

However, shortly after the ETS was published, a consortium of businesses in the southern half of the U.S. came together to file for a temporary injunction against the ETS, claiming administrative and Constitutional violations, and the 5th Circuit Court of Appeals granted the temporary injunction.  The ETS is currently, at least temporarily, stayed.  This comes as no surprise, as the cost of compliance with the ETS is sure to be great for all employers.

Several other circuits have also received requests to stop the ETS from going into effect.  As a result, there will be a judicial lottery conducted by the Department of Justice to determine which Circuit Court of Appeals will hear the case.

OSHA has already requested that the injunction be lifted pending the outcome of the case.  Therefore, it would be advisable for employers to continue to prepare for the ETS as if it would be implemented on the timelines imposed by OSHA originally.  In the past, timelines have been tolled due to judicial review of similar orders, but there is nothing saying that once the case is decided the original timelines won’t remain in effect.

This is a very complicated situation.  If you, or your organization need assistance in getting in compliance with the federal or state OSHA regulations, contact Wiley Reber Law, for legal advice that works.