On Friday, November 12, 2021, the U.S. Fifth Circuit Court of Appeals issued a ruling upholding its November 4, 2021, suspension of the OSHA ETS regarding vaccine and/or testing requirements. After the Order was released, OSHA issued the following statement: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
The next step in this process will be a lottery that will assign all challenges, including Kentucky’s, to a single jurisdiction; this is expected to happen on November 16. No matter the outcome, the issue will likely eventually go to the United States Supreme Court. Although the future of the ETS remains uncertain, KLC recommends employers continue to make preparations to implement the ETS, based on the fact that if it is confirmed, employers will not have much time to comply.
KLC is monitoring all developments and will notify cities as they occur. KLC Members may contact KLC for a sample policy and related documents. Contact Andrea Shindlebower Main, KLC personnel services manager, or any KLC Municipal Law Department member for questions or more information.