Waiting game: status report on OSHA ETS, various state plans

As we await word on the fate of the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-weekly-testing mandate for larger employers, it’s clear the U.S. Supreme Court (SCOTUS) doesn’t seem to be in any rush to end the suspense. In the meantime, here’s a status report on the situation as well as a refresher on how we got to this point. If upheld, OSHA’s emergency temporary standard (ETS) will generally apply to private companies with at least 100 employees in all industries.

How we got here

OSHA’s ETS was issued by the U.S. Department of Labor (DOL) on November 4, 2021 (as previously directed by President Joe Biden in September). The standard was almost immediately challenged and then stayed (halted) nationwide by the New Orleans-based U.S. 5th Circuit Court of Appeals.

In a “Friday night surprise” on December 17, the Cincinnati-based 6th Circuit (which covers Tennessee, too) lifted the stay, putting the ETS back in play. OSHA stated, however, it would delay enforcement until January 10, 2022, and the weekly testing part of the rule was postponed until February 9, 2022.

The matter was appealed to SCOTUS along with a separate rule from the Centers for Medicare and Medicaid Services (CMS) requiring COVID-19 vaccinations for healthcare workers in all covered facilities. After January 7 oral arguments, some observers speculated the justices’ questions indicated the Court may (1) rule against letting the OSHA ETS be enforced while lower court litigation plays out but (2) lift the stay on the CMS.