On January 7, the Supreme Court heard an oral argument regarding the applications for an emergency stay of the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) as well as the regulations issued by the Centers for Medicare & Medicaid Services. As we recently reported here, pending a ruling to the contrary by the Supreme Court, the ETS is currently in effect in the 29 states operating without a state-run OSHA Plan.
The remaining 21 states with approved State Plans must first adopt the ETS or a standard that is at least as effective. It is our understanding that federal OSHA has signaled to the State Plans that it expects those agencies to do so by January 24. Tennessee Occupational Safety and Health Administration (TOSHA), which operates Tennessee’s state-run plan, has now updated its website announcing that it will not take any action toward adoption pending the Supreme Court’s ruling on the legality of the ETS:
“Leadership for the Tennessee Occupational Safety and Health Administration (TOSHA) continues to closely monitor legal developments regarding the federal government’s proposed mandate requiring COVID-19 vaccinations or frequent testing for employees at Tennessee’s largest employers. With the United States Occupational Safety and Health Administration’s decision to delay enforcement of its Emergency Temporary Standard (ETS) until February, TOSHA will wait for the United States Supreme Court ruling on the legality of the ETS before taking any further action.”
Relying on this announcement, Tennessee employers are effectively relieved of any obligation to implement the standards outlined in the ETS pending the Supreme Court’s decision. We will provide additional updates as they become available.