6th Circuit Court of Appeals Chosen to Decide OSHA ETS Cases

At a Glance

On November 16, 2021, U.S. Court of Appeals for the Sixth Circuit was picked to hear the challenges to OSHA’s Emergency Temporary Standard (ETS) on Vaccination and Testing.

• The 6th Circuit is now charged with reviewing the 34 total petitions filed in 12 of the 13 circuit courts.
• The 6th Circuit will also decide whether the 5th Circuit’s injunction against the ETS should remain or be vacated.
• The 6th Circuit has not yet scheduled any hearings or assigned the judges who will hear the cases.
• Regardless of the 6th Circuit’s ultimate decision, it is possible the U. S. Supreme Court will make a final decision on the ETS.

What Does this Mean for Employers

The implementation and enforcement of the ETS by OSHA has been stalled until further notice. However, employers may be wondering if they should continue to prepare until a final decision on the ETS is made. There is no one-size-fits all approach; some employers may be more comfortable with waiting to see what the courts determine, while others may choose to continue preparing to meet the requirements of the ETS so they can come into compliance quickly if the rule is upheld. Employers will also need to consider their obligations to comply with other mandates that may be applicable under local and state laws or those that Paylocity encourages clients to review their options with their legal counsel to ensure all relevant factors are considered.

Impact on State OSHA Plans

Under the federal OSHA ETS, states that have their own OSHA enforcement agencies have 30 days to adopt the federal ETS or the option to put into place an alternative plan that would be at least as effective as the federal ETS. The court ordered stay on the federal ETS does not prevent a state OSHA plan from adopting the federal ETS as their own or implementing their own version of the ETS. However, with OSHA currently not enforcing the ETS until further notice by the Court, state OSHA plans may decide to wait to issue their standards.

Due to the recent legal challenges some state plans, like California Occupational Safety and Health Standards (Cal OSHA) for example, have decided to delay implementation of the federal ETS. However, employers covered under Cal OSHA authority should be aware that they must continue to comply with the State’s “COVID-19 Prevention ETS” that is in effect through January 14, 2022.

Paylocity is closely monitoring the legal challenges to the OSHA ETS on Vaccination & Testing, in addition to the lawsuits pending against the federal contractor vaccine mandate and the mandate issued by CMS which applies to certain health care facilities. Paylocity is continuing with our planned development efforts to ensure a vaccination and testing tracking solution is available for our clients regardless of the outcome of the various legal challenges.

Thank you for choosing Paylocity as your Payroll Tax and HCM partner. This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.