As we reported earlier, lawsuits challenging the OSHA Covid Emergency Temporary Standard (ETS) have been filed all over the country. The ETS is currently being stayed due to a ruling from the 5th Circuit Court (New Orleans). Earlier this week, the Judicial Panel on Multidistrict Litigation assigned all the ETS litigation to the 6th Circuit Court (Cincinnati). The 6th Circuit could rule on whether to keep or dismiss the stay as early as this weekend, and it is likely that the Supreme Court will take up the case within a week or so after that.
Once the stay has been either extended or dismissed, the 6th Circuit will begin to review the merits of the standard. The standard could be affirmed, thrown out, or the court could send it back to OSHA to make changes. Changes could make the standard more or less comprehensive. There are some parties that are asking the ETS be written more strictly. For example, there are unions saying the ETS should apply to smaller employers that have less than 100 employees. Other lawsuits are saying that OSHA has exceeded its authority by promulgating this rule. While we are advocating for the courts to toss out this rule, it is important to understand that the rule could also be made stricter, if the courts find certain arguments persuasive.
We should know a lot more over the next few weeks. We’ll keep you informed as this issue moves forward.