Update: OSHA's ETS Is Stayed And Suspended, And Cal/OSHA Gets Back On Track With Its Own ETS (Which May Soon Be "Permanent")

On November 12, the Fifth Circuit Court of Appeals solidified its emergency stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), ordering that OSHA “take no steps to implement or enforce” the ETS “until further court order.”  Details regarding this Federal ETS, including who it would cover and what it would require, can be found here.

On November 16, following the Fifth Circuit’s Order, OSHA announced that it was suspending all implementation and enforcement efforts related to its ETS “pending future developments in the litigation.” Whether or not OSHA’s ETS will survive the many legal challenges it now faces will be decided by the Sixth Circuit in the coming months.

Before the stay and suspension of OSHA’s ETS, California’s deadline for instituting an ETS “at least as effective” as OSHA’s was December 6, 2021. Cal/OSHA’s rule-making board, the OSHSB, was ready to discuss how it intended to meet this requirement during its November 18 meeting, but it ultimately took the matter off its agenda given the stay and suspension of the Federal ETS.

The OSHSB explained that, if and when the OSHA’s ETS survives court challenges, it will resume those discussions, but it will not take any affirmative action towards complying with OSHA’s ETS at this time.

However, the OSHSB did provide an update on its own COVID-related ETS plans. California employers can expect a second re-adoption of the current Cal/OSHA ETS – with some modifications – in December 2021. The proposed language for this re-adoption is currently posted on the OSHSB’s website, and the final version will be posted for public review at least 5 days before it is subject to an official re-adoption vote. In addition, the OSHSB is simultaneously working on a “permanent” version of its ETS (i.e., having a two-year effective date, as it is currently drafted), which it estimates rolling out sometime in March or April 2022.

If you have questions about what OSHA’s ETS means for your business, how Cal/OSHA’s plans may affect your operations, or if you have questions on any other issues relating to employment law, please contact one of our attorneys.

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