On Saturday, November 6, 2021, the United States Court of Appeals for the Fifth Circuit blocked the implementation of the OSHA Emergency Temporary Standard (ETS) that would require employers with 100 or more employee to implement a mandatory COVID-19 or weekly testing employees. Our prior post here set forth what California employers need to know about the OSHA ETS.
The Court’s order stated, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
OSHA cannot enforce the ETS until this stay is lifted, plus there are numerous other legal challenges to the ETS in other courts. While this may give employers some additional time to comply with the ETS, how much time, if any at all, is unknown at this point. In addition, California employers must also closely monitor the steps Cal/OSHA will take in response to the federal OSHA ETS. Cal/OSHA could modify its ETS to comport with the federal requirements, which California employers would need to comply with. Employers should consider continuing developing their polices and procedures to comply with the ETS in order to be prepared either way these legal challenges play out on the federal level, with a close watch on any actions taken by Cal/OSHA.