As I mentioned in last weeks article, the OSHA Emergency Temporary Standard (ETS) situation changes nearly every day. And that is indeed the case. Since I last wrote about this, the Fifth Circuit Stayed enforcement and implementation of the rule pending other cases.

The Circuit was the first to put an emergency stay on the rule on November 6. A week later it had heard arguments from both sides and said the stay would remain until a full hearing and final decision was made. That decision will likely come from the court selected to hear all the cases that have been filed as a consolidated case. Which court that will be is to be determined later this week.

Since multiple cases have been filed in multiple courts of appeals, OSHA as requested that they be consolidated. The move means the US Judicial Panel on Multijurisdictional Litigation will draw single court to hear the joint case. The lottery is currently scheduled for tomorrow the 16th of November.

Since this court has completely stayed the enforcement and implementation of the rule, this means that the December and January deadlines are likely not going to remain as they are. The court will likely lay out a time for arguments shortly after being selected but will give time for the litigants to work on their briefs as a group. While last week we expected to the process would be done by Thanksgiving, it seems pretty unlikely and not by the December 4 deadline.

What should you be doing Now.

I would still try to figure out whether the 100 employee minimum has any chance of touching you. If you MAY be under this rule, I would go ahead and be looking at making the decision on vaccine mandate or vaccine plus testing and get those decisions out of the way. If you will NOT be affected by this rule, as written, remember that OSHA is seeking comments on a permanent rule. They seem to have every intent on making this permanent and as broad as possible.

Just because the rule may not directly apply to you, you should have policies and procedures in place to help minimize the spread in your operation and/or housing. Whether you require vaccines, help people get vaccinated by working with a local health department or whatever, require masks, or whatever, you should be doing the steps necessary to keep your whole gin from going down at once. If you have an outbreak your goal is to keep it from taking the entire crew or office out. (That’s a lot easier said than done but that’s the goal.

More to come