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Businesses Likely Not Held to OSHA ETS Deadlines: A Legal Opinion

Key Points

  • In today’s Recommendations for Industry, we discuss the legal opinion from the Littler law firm that businesses will likely not be held to the current OSHA ETS deadlines. Read more below.
  • Pfizer will begin producing its COVID-19 antiviral pill, “to be made and sold inexpensively in 95 poorer nations that are home to more than half of the world’s population.” They join agreements similar to that of Merck. (NYT)
  • Reuters explores the impacts of the Delta variant and the potentiality for other Delta offshoots.
  • Fauci encourages that all “eligible Americans should ‘by all means’ get their COVID booster shots.”
  • Due to rising COVID-19 cases, Austria and Germany have imposed restrictions on unvaccinated individuals. In Austria, those who are unvaccinated will only be allowed to leave home for “work, food shopping or emergencies,” while in Germany, those unvaccinated will not be allowed to go to “restaurants, cinemas [or] sports facilities” (NPR). Also with the rise in COVID-19 cases, the CDC has added the Czech Republic, Guernsey, Hungary, and Iceland to the “very high” risk travel destinations (CNN).
  • On the other hand, India drops COVID-19 travel restrictions for unvaccinated tourists (Fortune). Despite this, Delhi is considering a new lockdown – but due to pollution and not COVID-19 (Washington Post).



With influenza rising in certain areas, and the similarities between COVID-19 and influenza symptoms, TAG continues to recommend that anyone with symptoms stay home so as not to transmit the illness. Following are some statistics on the current spread of the flu:

  • According to the CDC, while “Seasonal influenza activity in the United States remains low […] the number of influenza virus detections reported by public health laboratories has increased in recent weeks.” This week, New Mexico has jumped from moderate influenza activity to high/very high influenza activity. Rhode Island also has moderate influenza activity. Around the country, other states are at low or minimal influenza activity.
  • According to the WHO, “despite continued or even increased testing for influenza in some countries, influenza activity remained at lower levels than expected for this time of the year.” Globally, the influenza B viruses are predominant.
  • Other countries are reporting more H5N1 poultry-sourced avian flu in Norway, UK, and Japan (CIDRAP).


Public Health/Food Safety:

  • FSIS has extended its comment period for the labeling of lab-grown meat and poultry products.
  • The US FBI, in September 2021, warned of cybercriminals targeting the food and agriculture sector, listing a string of incidences in a Private Industry Notification, as discussed further by the Global Seafood Alliance which explores seafood companies’ vulnerabilities in cybersecurity.
  • EFSA will be providing “scientific advice on the nutrients and non-nutrient food components of public health importance for Europeans, food groups with important roles in European diets, and scientific criteria to guide the choice of nutrients for nutrient profiling. The Commission intends to propose new legislation at the end of 2022.”

Recommendations for Industry

Businesses Likely Not Held to OSHA ETS Deadlines: A Legal Opinion

A week after the November 5 publication of OSHA’s COVID-19 Vaccination and Testing ETS, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the standard, ordering that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

Given that OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation, the legal opinion of the Littler employment and labor law firm is that businesses likely do not need to comply with the December 6 and January 4 deadlines. As Littler states, “Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action.”

As Littler explains, for an emergency regulation to be upheld, OSHA must show that the emergency regulation is necessary to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”

The circuit court’s 22-page ruling identified multiple reasons why the ETS should be permanently prohibited, including:

  1. COVID-19 does not pose a grave danger because the virus is widely present, not particular to any workplace; is “non-life threatening to a vast majority of employees”; and is not a toxic or physically harmful “substance” or “agent” of the OSH Act.
  2. OSHA had made statements earlier in the pandemic that COVID-19 does not pose the kind of emergency that allows OSHA to take the extreme measure of an ETS.
  3. The ETS was overbroad because it defines covered employers not by the actual threat of transmission of a specific workplace or to specific workers, but is based on the number of employees alone.
  4. The ETS also is underinclusive because it fails to protect vulnerable workers in workplaces of fewer than 100 employees, even though these employees are exposed to the identical alleged “grave danger.”
  5. Even if the ETS were to pass “constitutional muster,” COVID-19 was said to not be the proper subject of ETS action by OSHA.

With additional petitions filed in circuit courts across the U.S., the next step will be the consolidation of all the petitions for review by one circuit court, selected by lottery on or about November 16, Littler further explains. “The circuit court chosen will ultimately determine whether to continue, alter, or lift the Fifth Circuit’s order of preliminary stay.” But the final resolution on the validity of the ETS will likely lie with the US Supreme Court.

Read the full article by Littler here.

In Case You Missed It

  • In Thursday’s Recommendations for Industry, we discussed TAG’s weekly matrix, the plateauing of case rates, and what businesses need to be doing. Read more here.
  • The pandemic is not yet over, although there are positive signs in the U.S. that “with more and more Americans vaccinated, it’s not likely to linger as long or do as much damage because there’s a level of protection this season that wasn’t there last year.” However, it’s still important to retain all protective measures.
  • Like other European countries, Germany is seeing a rise in COVID-19 cases. Today marks the “fourth day in a row that it has posted a fresh daily high.” As millions of Germans are yet to be vaccinated, there is some fear that the estimated “100,000 deaths [is] a ‘conservative estimate’ and that there is indeed a real emergency situation” at this time.


Public Health/Food Safety

  • The WHO is warning that due to the COVID-19 pandemic, the rise of and fight against measles has declined. In fact, “more than 22 million infants missed their first dose of measles vaccine” in 2020, “marking the largest increase in two decades and creating dangerous conditions for outbreaks to occur.” In 2020 alone, due to weak monitoring, testing, and reporting, “major measles outbreaks occurred in 26 countries.”
    • We have discussed similar issues with Tuberculous tracking, reporting, and prevention.

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