GrayRobinson Labor & Employment Team: OSHA ETS Stayed; Special Session B Concludes

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), ordering OSHA "take no steps to implement or enforce" the ETS "until further court order.” In response, OSHA has recently updated its ETS webpage to read: “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.”

On November 17, 2021, a Multi-District Litigation lottery was held in order to determine which U.S. Court of Appeals would decide the merits of the legal challenges to the ETS. It was determined that the U.S. Court of Appeals for the Sixth Circuit (which hears appeals from the federal district courts for Kentucky, Michigan, Ohio, and Tennessee) was the lottery “winner,” and will be tasked with ruling on the many challenges filed nationwide with respect to ETS.

November 17, 2021 also marked the end of the Florida Legislature 2021 Special Session B, which resulted in the passage of four bills that directly relate to subjects covered under OSHA’s ETS. Among the language in the four bills: (1) the first bill prohibits private employers from imposing COVID-19 vaccination mandates for certain employees, unless certain individual exemptions are made available to employees, and also prohibits public employers from mandating vaccinations, and imposes fines for violations; (2) the second bill creates a public records exemption for certain information contained in files created during an investigation of an employer that refuses to provide individual exemptions from its COVID-19 vaccination requirements, including personal medical information and religious information; (3) the third bill directs the Executive Office of the Governor to review options for the State of Florida to handle its own workers’ occupational safety and health issues; and (4) the fourth bill repeals the authority of the state Surgeon General to mandate vaccinations in the State.

On November 18, 2021, Governor Ron DeSantis signed the four bills into law, and each became effective upon the Governor’s signature.

Although the ETS has been stayed, employers may want to consider taking certain proactive steps towards complying with the requirements of the acts by reviewing the ETS, and the resources OSHA has provided to assist employers in ensuring they are compliant with the ETS. In addition, employers not covered by the ETS should immediately evaluate the Special Session laws to determine whether they are applicable to the employer, particularly if the employer has any form of vaccination policy in place.

GrayRobinson’s Labor and Employment Team will continue to post updates on the ETS as it works its way through the courts, but employers may always contact a member of GrayRobinson’s Labor and Employment Team with any immediate questions regarding OSHA’s ETS, vaccination, face covering, or testing for COVID-19 in the workplace.