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UPDATE: Legal Challenge on OSHA's Vaccine or Test ETS

UPDATE: Legal Challenge on OSHA's Vaccine or Test ETS

UPDATE: Legal Challenge on OSHA's Vaccine or Test ETS

Dear ATA Member:

Our legal challenge to OSHA’s vaccine-or-test Emergency Temporary Standard (ETS) continues to move at a fast pace. Within an hour of the Sixth Circuit’s December 17 order lifting the stay that the Fifth Circuit had previously imposed, ATA and our coalition of business groups filed an emergency application with the Supreme Court seeking to stay the ETS once again. The government’s opposition to that application was filed on December 30, and briefing on our application closed yesterday with the filing of our reply.

The Supreme Court routinely decides these kinds of emergency stay motions on the briefs, without oral argument. However, the Court took the unusual step of scheduling oral argument on two of the emergency applications before it (out of at least fourteen that have been filed): one by a group of states, and ours. That choice presumably reflects the Court's recognition that the seriousness of our arguments and presentation of the issues makes our application the best vehicle, among the many private-party challenges, for resolving this complex matter.

The oral argument is scheduled for this Friday, January 7, at 10:00 a.m. (The Court will also hear argument during that session on the healthcare worker vaccination requirement issued by the Centers for Medicare and Medicaid Services.) While the Supreme Court is free to issue its decision at any time, we would expect them to do so quickly in this case, in light of the current January 10 enforcement deadline for the initial phase of the ETS (with full testing requirements for unvaccinated employees set for enforcement on February 9).

In the meantime, we continue to seek further clarification from OSHA on the extent to which commercial drivers are exempted by the ETS’s carveout for employees who work alone or outdoors (with only occasional brief indoor contacts with co-workers or customers). Shortly after the ETS was published, Secretary of Labor Marty Walsh indicated that this carveout meant that the rule would not apply to most truck drivers. ATA’s request for formal guidance on that issue remains pending, though OSHA has indicated that it is working on a comprehensive update to the FAQs it published when it first released the ETS (work on which was suspended by the Fifth Circuit’s stay ordering OSHA not to take any steps to implement the ETS).

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