The November 5th publication of OSHA’s ETS was followed by several lawsuits, including a stay order filed by the 5th Circuit Court. Several other courts also contested the ETS, which resulted in a lottery draw to determine which court would hear the case. On November 16, it was determined that the 6th Circuit Court would be hearing the case to determine what happens next with the ETS.
The 6th Federal Circuit Court, which includes Kentucky, Michigan, Ohio, and Tennessee, will preside over the case. All lawsuits that have been filed will be consolidated and heard before the court, who will decide to keep the stay issued by the 5th Circuit, modify the stay, or throw it out. A decision could also be made to limit the scope of the stay to only the federal circuits that were in the lottery or apply it nationwide. Depending on the decision, the Department of Labor can still decide to take the stay to the Supreme Court.
What should employers expect?
Lawsuits were filed in all 12 regional circuit courts and a total of 34 lawsuits were filed overall. It will take time to consolidate them and for the court to make a determination. Some lawsuits claim the ETS is too restrictive and some say it doesn’t go far enough to protect employees. Even if the stay is not overturned, there may be revisions to the original version of the ETS.
The 6th Circuit is traditionally conservative, so if the stay is not overturned, it is expected that the case will be appealed to the Supreme Court.
What should we do while we wait for a decision?
It is recommended that employers plan to comply with the ETS as it was created, although no implementation is required at this time. If the stay is overturned by the 6th Circuit Court or the Supreme Court, the original compliance dates may still need to be met.
MRA will continue to provide updates on this continuously evolving situation.