Update on OSHA ETS vs Tennessee COVID Related Rules

From the Lewis Thomason Employment Group

Earlier this month, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) (Link to ETS Fact Sheet). This “vaccine or test” rule targeted employers with 100 employees or more. The Lewis Thomason Employment Group wants to make you aware of two recent developments on this ever-evolving front.

1) Federal Court Issues Stay

The federal courts recently issued a stay over the ETS which means the ETS will not go into effect until a court decides whether it is constitutional. The Sixth Circuit Court of Appeals will preside over related litigation and ultimately make the key decision. However, the United States Supreme Court could ultimately decide on this issue, further delaying a definite ruling on whether the new OSHA ETS will go into effect.

Likely taking all of the above into account, OSHA released the following statement on its website just this week:

  • On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” 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.

2) Tennessee General Assembly Passes Legislation

The Tennessee General Assembly recently passed House Bill 9077 / Senate Bill 9014 that creates new rules for public and private entities regarding vaccine and mask requirements. On November 12, Governor Bill Lee signed this legislation into law which states:

  • Government entities cannot mandate that a person receive a COVID-19 vaccine.
  • Public and private employers cannot compel, or otherwise take adverse action against, a person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason. 
  • Private businesses and governmental entities cannot require proof of vaccination as a condition to access their premises or to receive the services those institutions offer.
  • Government entities (and some publicly funded businesses) cannot require that employees/visitors wear face masks unless certain governmental health declarations have occurred. Private companies, however, remain free to set their own mask policies for both employees and customers.  

While the OSHA ETS is not moving forward at this time, as we all await further litigation developments, Tennessee’s new law is already in effect. If you have specific questions or concerns about these complex issues, please contact your attorney directly. The Lewis Thomason Employment Group will continue to monitor this evolving legal landscape and keep you up to date on the latest developments.

Note: If you are a federal contractor or subject to the CMS rule, the terms and concepts discussed herein may not apply to you, please contact your attorney directly.

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