Compliance Blog

Jan 14, 2022
Categories: Operations

Supreme Court Stays the OSHA ETS

Yesterday, the Unites States Supreme Court granted the emergency relief requested in National Federation of Independent Business v. Occupational Safety and Health Administration (OSHA). That is a case challenging OSHA’s emergency temporary standard (ETS) that would require employers with 100 or more employees to demonstrate that covered employees received a COVID-19 vaccine or be subject to weekly testing beginning in February. Here is an earlier NAFCU Compliance blog post on the ETS. And here is the most recent NAFCU news coverage of the ETS.

The case ultimately reached the Court after the U.S. Court of Appeals for the Sixth Circuit dissolved a stay of the ETS while the case and others consolidated with it were up on appeal before the Sixth Circuit.

After the Sixth Circuit dissolved the stays of the ETS, the parties fighting the ETS in the Sixth Circuit applied to the Supreme Court for stays of the ETS pending the resolution of the appeals before the Sixth Circuit. A per curiam opinion granted the applications for stays of the ETS presented to the Court. The per curiam opinion concluded that the stays were appropriate because the applicants for the stays were “likely to succeed on the merits of their claim that [OSHA] lacked authority to impose the mandate.” The per curiam opinion also suggested that the equities do not justify withholding the relief requested by the applicants.

There was a concurrence and a dissent, but the main takeaway here is that the ETS is stayed pending the outcome of the appeals in the Sixth Circuit and any potential writs of certiorari seeking further review by the Supreme Court if the Federal Government prevails at the Sixth Circuit.

But employers may need to be mindful of any relevant state or local restrictions that might apply.

Programming Note: NAFCU will close at noon on Friday, January 14th, in observance of Martin Luther King Jr. Day. NAFCU will reopen at 9 am on Tuesday, January 18th. The team will resume blogging next Wednesday.

About the Author

David Park, NCCO, Senior Regulatory Compliance Counsel, NAFCU

David joined NAFCU in September 2018.  As part of the Regulatory Compliance Team, he provides daily compliance assistance to member credit unions on a variety of topics. 
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