– OSHA likely established the existence of an “emergency” because the record shows “COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs.” The court explained that OSHA’s failure to issue an ETS earlier in the COVID-19 pandemic does not establish the absence of an “emergency.” The court relied heavily on the data, information, and statements from the 150-page Preamble to the Final Rule in reaching this conclusion. Petitioners are not likely to succeed in demonstrating OSHA failed to establish the requirements necessary to issue an emergency temporary standard under the OSH Act: (1) the existence of an emergency (2) that employees are exposed to a “grave danger” from a new substance, agent, or a new hazard and (3) the standard is necessary to protect workers from the danger.Petitioners are not likely to succeed on their merits of proving OSHA exceeded its statutory authority by issuing an ETS related to a ubiquitous virus because OSHA has the authority to regulate infectious diseases even though such infectious diseases are not unique to the workplace.Stranch authored the Sixth Circuit opinion dissolving the stay. Rule on COVID-19 Vaccination and Testing, 86 Fed. Judicial Panel on Multidistrict Litigation consolidated all challenges to the ETS in the Sixth Circuit. The Sixth Circuit “won” the lottery and the U.S.
Judicial Panel on Multidistrict Litigation conducted a lottery to select which federal circuit would hear all of the legal challenges. In response, OSHA announced it was suspending implementation and enforcement of the ETS pending further litigation developments.īecause challenges to the ETS were filed in virtually every court of appeals, as required by federal law, the U.S. In entering its nationwide preliminary injunction, the Fifth Circuit held, among other things, the ETS exceeded OSHA’s statutory authority, COVID-19 likely did not qualify as an emergency, and OSHA failed to establish workers were exposed to a “grave danger” or that the ETS was necessary to eliminate the “grave danger.” One week later, in a lengthy opinion, the Fifth Circuit issued a preliminary injunction order, staying the implementation and enforcement of the ETS until further order. 6, the Fifth Circuit temporarily enjoined the enforcement of the ETS. As justification for the ETS, the Final Rule included a more than 150-page Preamble that cited, among other things, scientific studies and data regarding COVID-19, COVID-19 transmission in the workplace, and the severity of COVID-19.Īlmost immediately, states and employers filed lawsuits seeking to stay enforcement of the ETS. 4, 2021, OSHA published a nearly 500-page Interim Final Rule and ETS. 9, so long as an employer had made reasonable, good faith efforts to comply with the ETS. 10 and would not issue citations for noncompliance with the ETS’s testing requirements before Feb.
To provide employers with sufficient time to comply, OSHA announced it would not issue citations for noncompliance with any requirements of the ETS before Jan. To account for uncertainty created by the stay, however, OSHA announced it would exercise enforcement discretion with respect to the ETS’s stated compliance deadlines. In response, OSHA announced the ETS will go into effect Jan. 4 GT Alert for a summary of the ETS requirements.
17, a three-judge panel for the United States Court of Appeals for the Sixth Circuit, by a 2-1 vote, dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing.