January 26, 2022

3 Min Read
Supreme Court Grants Stay on Pandemic-Related OSHA Requirements for Companies With 100-Plus Employees

Update 1/26/22 – The U.S. Supreme Court granted a stay on Jan. 13 that halts the implementation of OSHA’s pandemic-related ETS rules on companies with 100-plus employees, including self-storage operators. The stay pauses enforcement of the ETS, while the 6th U.S. Circuit Court of Appeals weighs the merits of legal challenges to the regulations.

In a 6-3 vote, the court indicated the vaccine and testing mandates under the ETS were too broadly applied, writing that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed … That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

It’s unclear when the 6th Circuit will issue a decision on pending legal cases. The ETS is set to expire on May 5, which means the regulations could end before the court acts, according to “The National Law Review.”

11/23/21 – OSHA has temporarily suspended implementation of the pandemic-related ETS rules that would have begun impacting self-storage companies with 100-plus employees on Dec. 5. The decision came after the 5th U.S. Circuit Court of Appeals issued an order for OSHA to “take no steps to implement and enforce” the regulations “until further court order.”

Several lawsuits have been filed against the ETS. The 6th U.S. Circuit Court of Appeals was selected at random on Nov. 16 to hear the broad slate of state and private challenges to the regulations, according to a source.

The SSA has created a legal-resource web page monitoring updates to the ETS litigation and its potential impact on self-storage operations, according to a Nov. 22 newsletter emailed to its members. OSHA also has a full breakdown of the ETS on vaccination and testing on its website.

11/10/21 – The Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) last week that’ll set new pandemic-related requirements for companies with 100-plus employees, including self-storage businesses. The mandate is designed to reduce the spread of COVID-19 in the workplace, according to a Nov. 8 newsletter distributed by the national Self Storage Association.

Employers must ensure their staff are fully vaccinated by Jan. 4, or that any unvaccinated employees show proof of a negative COVID test every week. Beginning Dec. 5, unvaccinated workers will also have to wear a mask at work, the newsletter reported.

Exemptions are available for employees who work from home, outdoors or in an isolated environment. The new rules also provide exceptions for employees who tested positive for or were diagnosed with the virus within the last 90 days. It also addresses employer requirements for paid-time off to get the vaccination, acceptable forms of testing, responsibility for paying for testing and more.

The ETS is already facing legal challenges. A federal appeals court representing Louisiana, Mississippi and Texas placed a temporary block on the mandate while it considers contenders’ arguments. It held that the ETS presented “grave statutory and constitutional issues.

The 22 states that operate their own OSHA programs will need to implement the federal minimum requirements. However, they can also impose mandates that go beyond these standards. The timeline for implementation might also differ.

New Sources:
SSA Magazine Weekly 1/24/22, U.S. Supreme Court Grants a Stay on OSHA’s COVID Regulations
U.S. Supreme Court, Per Curiam Opinion on Applications for Stays
The National Law Review, Supreme Court Stays OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard

Previous Sources:
SSA Magazine Weekly 11/22/21, OSHA Temporarily Halts New Mandatory COVID Workplace Rules
OSHA, Emergency Temporary Standard
Holland & Knight LLP, The Sixth Circuit Wins the OSHA ETS Lottery: What We Know and What Happens Next


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