Vaccine ETS: Now What?

Litigation and rulemaking continue on the Emergency Temporary Standard (ETS) by the Occupational Safety & Health Administration (OSHA).  Last week, 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. By a decision of 6 to 3, the Court determined that the ETS by OSHA is outside the limits of the agency’s power as authorized by Congress.  NPGA’s counsel, representing NPGA and several other associations in a litigation coalition, was one of only two litigants granted review by the Supreme Court; the other litigant being a collection of state attorney generals.

The Supreme Court’s decision also sent the litigation back to the U.S. Court of Appeals for the Sixth Circuit.  There, NPGA’s counsel will argue against the merits of the ETS.  Meanwhile, the agency’s rulemaking process continues with NPGA advocating against the terms of the ETS to OSHA.  Where does this leave employers and employees? While OSHA is prevented from enforcing the ETS, there are a few scenarios that could happen next in light of the stay:

1. OSHA withdraws the ETS rulemaking and files to dismiss the case. This would be the quickest end to the ETS.  OSHA would still retain the ability to publish a new proposal through the normal rulemaking process rather than the unique, accelerated schedule of the ETS.
2. OSHA allows the ETS to expire and files to dismiss the case. The ETS expires on May 5^th unless finalized through the rulemaking process.  OSHA could allow the expiration date to naturally terminate the ETS and use the expiration of the ETS as a reason to end the litigation.
3. OSHA proceeds with the rulemaking and files to dismiss the case. OSHA could review comments to the ETS through the rulemaking process, and propose a new rule based on the comments submitted.  A new proposal would follow a normal rulemaking process, not the accelerated schedule of the ETS.
4. OSHA proceeds with the rulemaking and the case. OSHA could request that the Sixth Circuit expedite the case schedule while simultaneously reviewing comments submitted through the rulemaking process. This is a very ambitious option for the agency to move through litigation and rulemaking before the ETS expires on May 5^th; lightening fast speed for a federal agency and the court system.

To prepare for the most difficult scenarios, NPGA’s counsel is shifting focus to argue against the merits of the ETS before the Sixth Circuit.  NPGA will continue to advocate for our members through the OSHA rulemaking on the ETS and provide 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.  The heart of the NPGA’s advocacy 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.