This week, the Sixth U.S. Circuit Court of Appeals in Cincinnati, OH was randomly selected by the U.S. Judicial Panel on Multidistrict Litigation to consolidate all litigation regarding Occupational Safety and Health Administration’s (OSHA’s) Covid Emergency Temporary Standard (ETS) which applies to private businesses with at least
100 employees or more.
Almost simultaneously, OSHA suspended its implementation and enforcement proceedings on the ETS, saying it “remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
On November 6, the Fifth U.S Circuit Court of Appeals temporarily suspended the ETS rule from taking effect while the court considered a challenge brought by multiple petitioners including the Attorney General of the State of Texas. Furthermore, on November 12, the Fifth Circuit Court reaffirmed the stay and further ordered OSHA to take no steps to implement or enforce the mandate until further court order, citing “the mandate at issue here is anything but a delicate exercise of this extraordinary power. Quite the opposite, rather than, a delicately handled scalpel, the mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than little bearing on workers’ varying degrees of susceptibility to the supposedly grave danger the mandate supports to address.”
The litigation could ultimately make its way to the U.S. Supreme Court, however, in the immediate term, it will be left to the Sixth Circuit to decide whether to extend or dismiss the Fifth Circuit’s current stay order. Once a decision has been determined on the stay order, the Sixth Circuit Court can then review the merits of the ETS.
Based on the courts review of the merits, the ETS could be upheld, dismissed, or sent back to OSHA to make more or less restrictive changes to the ETS.
If the court upholds OSHA’s rule, it presumptively is expected to impact more than 80 million private employees. As court proceedings progress in the coming weeks, PCG and others will continue to monitor the outcome and keep you informed. If you have questions regarding the status of the mandate or its potential impact on you or your business, please contact us anytime.
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