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U.S. Supreme Court Reinstates Stay of OSHA COVID-19 ETS

Yesterday (January 13) the U.S. Supreme Court issued a decision preventing OSHA from enforcing its Emergency Temporary Standard [ETS] on COVID-19. Today’s decision did not strike down the ETS – it merely reinstates the stay that was previously lifted by the Sixth Circuit Court of Appeals. The stay will be in effect until the challenges to the ETS are fully litigated. That means that OSHA will only enforce this ETS if it survives litigation.

That said, the Opinion contains strong language supporting the argument that OSHA has exceeded its statutory authority and agreeing that those challenging the ETS are likely to succeed on the merits of their claims. Among other reasons, the Court found that COVID-19 is not a work-related danger in most workplaces but is a “universal risk” that can and does spread at home, in schools, “and everywhere else that people gather.”

The stay will remain in effect until the Sixth Circuit issues a decision on the merits of the underlying challenges to the merits of the ETS, and while any appeal(s) therefrom are pending.

As the issue is litigated, the ETS may be totally rescinded, or revised. Therefore, OCA and its legal counsel are recommending that OCA members who meet the 100 + employee status take a “wait and see” position, until we have a final determination on the status of the OSHA ETS.

Despite the stay of the OSHA vaccine mandate, we believe inspiring our construction workers to get vaccinated is still of great benefit to our members and Ohio’s construction industry. To review a summary of common questions, answers and concerns of construction employers regarding the vaccine, please click HERE.

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