Federal Appeals Court Halts OSHA ETS! What does this Mean for Employers?

By and
November 8, 2021

On November 6, 2021, the Fifth Circuit Court of Appeals temporarily halted OSHA’s latest ETS by issuing an order staying the ETS until the court can conduct a full review.  BST Holdings v. OSHA (5th Cir 11/06/2021). The order states:

Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021, Emergency Temporary Standard (the “Mandate”) pending, expedited judicial review. 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. The Government shall respond to the petitioners’ motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.

What does this mean for Wisconsin employers?  Currently, there are several actions pending in different federal courts across the nation.  We believe eventually the cases will be consolidated and heard by either a single federal court, or possibly the Supreme Court.  The bottom line is we hope to have a clear legal answer soon.  In the meantime, we advise employers who are covered by the ETS to take measures to be ready in the event this stay is lifted and the deadlines for compliance (see our last e-alert for details here) are not extended.  Until then, keep your eyes peeled for our updates or contact our COVID-19 team with questions.

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