OSHA Suspends Implementation and Enforcement of Vaccine ETS

This information is provided by national senior living association partner, Argentum.

Earlier today, OSHA posted a note to its website that it has suspended implementation and enforcement of the Emergency Temporary Standard (ETS) pending future developments in the ongoing litigation of the ETS. At least 27 states have challenged the legality of ETS, along with challenges by private litigants and business groups. Last Monday, the 5th Circuit issued a nationwide stay of the ETS pending expedited review of the ETS and OSHA’s justifications for it, and then upheld the stay on November 12. A U.S. appeals court in Cincinnati was selected by a lottery yesterday to decide the consolidated challenges.

OSHA had originally stated it would move forward with enforcement notwithstanding the court order. This is the first time OSHA itself has said that it will not be implementing or enforcing the ETS at this time.

The note reads in full:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA 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.

Argentum is monitoring developments of this announcement and will share more information on the impact of the suspension as it becomes available. For more information on the ETS and the CMS Interim Final Rule (IFR), please review this memo prepared by Argentum’s outside counsel Foley Hoag LLP. Additionally, an in-depth webinar on both the ETS and IFR was presented yesterday and a recording of the session will be available on the Argentum website soon.