Stay Granted: Vaccine ETS Litigation

By a decision of 6 to 3 the Supreme Court of the United States issued a stay on the Emergency Temporary Standard (ETS) for vaccination or testing and face covering policies for all companies with 100 or more employees. NPGA’s counsel, representing NPGA and several other associations in a litigation coalition, argued before the Supreme Court to urge the justices to reinstitute the stay granted by the U.S. Court of Appeals for the Fifth Circuit.  NPGA’s counsel was one of only two litigants granted review by the Supreme Court; the other litigant being a collection of state attorney generals.  In December, the Fifth Circuit’s stay was removed by the U.S. Court of Appeals for the Sixth Circuit, which granted the U.S. Department of Labor’s motion to vacate the stay.

With the stay back in place, NPGA’s counsel will now shift to argue against the merits of the ETS before the U.S. Court of Appeals for the Sixth Circuit.  Given this action by the Court, we anticipate that the Occupational Safety & Health Administration (OSHA) will revise its recent Enforcement Discretion Notice to abide by the terms of the stay.  An update should be publicly available online shortly, here.

NPGA will continue to keep our members informed of the litigation process, our efforts, and resources available to assist you in navigating these policies.  NPGA is pursuing three parallel tracks: OSHA rulemaking on the ETS; litigation before the U.S. Court of Appeals for the Sixth Circuit; and guidance materials for the ETS, if the compliance deadlines are enforced. Material available on the Member Dashboard includes guidance and templates to develop ETS policies as well as guidance and FAQs on the primary requirements of vaccination executive orders for federal contractors and subcontractors.

NPGA’s litigation petition joins several trade associations that rely on over-the-road transportation and provide consumer services or goods.  The heart of the matter is not premised on the value or efficacy of COVID-19 vaccines, but rather the recognition that our members have taken extraordinary measures to protect our employees, customers, and communities during the pandemic and the immediate irreparable harm of losing employees, incurring substantial compliance costs, and worsening already fragile supply chains and labor markets.