November 16, 2021

By Attorneys Aaron Hilligas, Ann Smisek and Elizabeth Heffernan

On Friday, November 12, 2021, the panel for the United States Court of Appeals for the 5th Circuit issued a decision temporarily halting enforcement of the OSHA Emergency Temporary Standard (“ETS”) pending adequate judicial review. This decision further ordered that OSHA not take steps to implement or enforce the ETS until further court order.

This additional mandate appears to apply nationwide, which would mean the timelines laid out in the rule are not currently being enforced. Yet, there still remains some uncertainty as to the scope of the Court’s order. Briefing for the 5th Circuit is due Tuesday afternoon, with another decision anticipated in the coming days. There is also pending litigation in other Circuits and we expect an assignment consolidating those cases into a single proceeding before a selected Circuit court on Tuesday, November 16th. 

We will continue to monitor the progress of this rule and provide updates. While the stay is pending you may continue to develop policies to be implemented if the stay is lifted and the ETS is enforced. We would recommend waiting to adopt those policies until further information is available. We cannot anticipate whether the deadlines for compliance will be adjusted if the stay is lifted. For Iowa school districts, the Iowa Association of School Boards has provided a general FAQ and sample policies for additional information which can be accessed via IASB member log-in. 

Please contact a member of the Ahlers & Cooney Employment Law team for any questions or additional guidance.

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