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ACEC News / Advocacy

November 10, 2021

How Significant is the Stay Order on OSHA's COVID Emergency Temporary Standard?

By Dan Hilton

BLUF: On Saturday, the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) on OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS). It is important to understand that this ruling has been challenged by the federal government and legal proceedings are ongoing. In addition, it only affects the OSHA ETS and does not alter the implementation of EO 14042, the federal contractor mandate.

We are offering a complimentary webinar for our members to be held Friday, November 12 at 2 pm ET on both mandates to examine this further – click here to register.

This past weekend’s court ruling was the first of what we expect to be a series of legal challenges that could impact the substance and timing of the OSHA Emergency Temporary Standard (ETS). The suit challenging OSHA’s ETS was initiated on behalf of a group of private businesses, religious organizations, and several states. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The Stay Order is silent as to its scope or reach and the entirety of the court’s explanation for the Stay Order is below:

“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”

In addition to the 5th Circuit decision, five separate lawsuits have been filed in the last several days challenging the mandate. Saturday’s ruling to stay the ETS is the first court ruling to pause implementation of any vaccination-related mandate by the federal government or a state government.  It is widely presumed that expedited hearings will be set and a prompt decision in the case is likely to be made soon after. It is also believed that the various lawsuits will be consolidated into one case.

There are numerous opinions on the outcome of this issue. There is no guarantee the stay of the ETS remains in place or that higher courts will get involved, including the Supreme Court. To date, none of the parties challenging the companies and governmental entities that have implemented vaccinate mandates have stopped the mandates.  So there is reason to believe that the ETS could be fully implemented and possibly even on the current schedule of January 4, 2022.

With respect to EO 14042, the federal contractor mandate, the White House has delayed the start of implementation to January 4, 2022.  That is confirmed and is not directly impacted by the court proceedings related to the OSHA ETS. The Safer Federal Workforce Taskforce will still need to provide updated guidance to agencies and contracting officers to address this change of date. That has not yet been updated but we will continue monitoring their website and would encourage you to remain vigilant as well.

Dan Hilton is ACEC Director of Procurement Advocacy & International Affairs.

 


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