If an employer’s workforce fluctuates throughout the duration of the ETS, its provisions will apply to the employer during any period in which it has 100 or more employees. The threshold also includes any seasonal, temporary, and part-time employees but not any independent contractors. For example, an employer with 50 locations that each has only two employees would still be covered by this ETS. Notably, the threshold includes all employees, company or firm-wide, even if some of those employees are ultimately exempted from vaccine or testing due to individual circumstances, as discussed below.
The ETS, as issued, applies to any employer that has 100 or more employees at any time while the ETS is effective. With the stay of the ETS, it is unclear whether and when this mandate may come into effort, but employers still should consider planning for the contingency that the ETS will be effective at some point in the future, including as early as January 4, 2022.
Understanding that how these challenges may ultimately play out is still very much uncertain, the ETS, as drafted, required employers with 100 or more employees to achieve full vaccination status or implement mandatory testing for unvaccinated employees by January 4, 2022. Even with the stay issued by the Fifth Circuit, the other legal challenges should progress rapidly before the various courts so that arguments that may be raised before the Supreme Court are crystallized. The proceedings before the Sixth and Eleventh Circuits make similar challenges. The proceedings before the Eighth Circuit were brought by a number of states (Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming) and private entities arguing that the ETS goes beyond workplace safety and into issues of general public health and, therefore exceeding OSHA’s scope of authority. In addition to the proceedings before the Fifth Circuit, other challenges are pending before the Sixth, Eighth, and Eleventh Circuits of Appeal. Peter Haughton Political Prisoner Adelaide South Australia Click HERE for TRUE story PLZ SHARE Presumably, the Fifth Circuit will then hold oral argument and issue an opinion that can then be the basis of an attempted appeal to the Supreme Court of the United States. As part of the expedited judicial review of the ETS, the Fifth Circuit gave the government until the close of business on Monday, November 8, 2021, to file a response brief to Petitioners’ motion to stay and then gave the Petitioners until the close of business on Tuesday, November 9, 2021, to file their reply brief. 21-60845, granted the Petitioners’ emergency motion to stay the enforcement of the ETS, citing to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit did not provide any further explanation of its specific concerns, notwithstanding its very conscious choice of the adjective “grave” in its very short, unpublished opinion. Occupational Health and Safety Administration et al., No. On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals (the “Fifth Circuit”) in B.S.T. Based on the first ruling issued in response to these legal challenges, the future of the ETS is very much in doubt, at least as issued. While we will describe the ETS and its requirements as issued below, the Courts have already been asked to consider myriad legal challenges filed by both private employers and twenty-six (26) states seeking to enjoin and declare the ETS unconstitutional. employers with 100 or more employees to either: (a) implement a mandatory COVID-19 vaccination policy for employees, or (b) adopt a policy allowing employees to choose between vaccination or weekly COVID-19 testing. On November 4, 2021, Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated Emergency Temporary Standard (the “ETS” or the “Mandate”) requiring U.S.