On November 4, 2021, OSHA (the Occupational Safety and Health Administration) announced the details of the Emergency Temporary Standard (ETS) for Covid regulations in businesses of 100 employees or more. Two weeks later, after a court ruling by the Fifth Circuit rejecting the ETS, OSHA announced that it would not be enforcing the ETS.
Whew! It's like whiplash for business owners, but it's not over.
The Sixth Circuit Court of Appeals won a "lottery," which means that they will hear the additional challenges to the ETS. Ultimately, though, it's likely to end up on the Supreme Court's doorstep. Most likely, the ETS will not come through unscathed, especially considering the harsh words the Fifth Circuit had:
[T]he 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 a little bearing on workers' varying degrees of susceptibility to the supposedly "grave danger" [that] the Mandate purports to address.
The Sixth Circuit is expected to give a ruling more in line with the previous one than preserving the ETS. Lawrence Gostin, a law professor at Georgetown University, told The Hill: "Overall, the Sixth Circuit may not be as hyper-conservative as the Fifth Circuit, but it is among the country's most conservative circuits. This isn't good news for the Biden administration."
But it would be best if you prepared your business anyway. Here's why:
- It's not all or nothing. Requiring businesses to have a Covid-safety plan is reasonable and may withstand the challenges, even if the details change. You probably already have a Covid-safety plan in place, but now would be the time to update it, even if you believe the ETS will never go into effect. OSHA has a sample document you can start with.
- Testing protocols can be complicated. If this does go into effect, you'll need time to plan how to test and track your unvaccinated employees. Look into this now.
- OSHA can implement this through formal methods. An ETS skips the normal regulation process, but that doesn't mean OSHA can't implement the same restrictions via traditional methods. Of course, it will take longer, but they may move forward with something similar.
- Keeping your employees safe is a good idea. Employment attorney Jon Hyman, a partner at Wickens Herzer Panza, advises: "Employers can always take reasonable steps to protect their employees' health and safety with or without the OSHA ETS. Indeed, employers who fail to do so could very well be violating a permanent OSHA rule, its general duty clause."
Keep your eye on this court case. Things are likely to move quickly, and being prepared never hurts.