OSHA ETS Faces Legal Challenges

Over the weekend, on Saturday, the federal Fifth Circuit Court of Appeals (which covers Texas, Mississippi and Louisiana) issued a temporary injunction, “blocking” the OSHA ETS from taking effect. The Court noted “grave statutory and constitutional issues” with the ETS. While the intent of the plaintiffs who commenced the litigation against the OSHA ETS was certainly to put the ETS on hold nationwide, the Court’s order does not explicitly state that its injunction is being issued on a nationwide basis. Thus, at the moment, the Fifth Circuit’s injunction does not appear applicable to New York.

In addition to the Fifth Circuit, a number of other federal court litigations have been commenced to block the ETS from taking effect. One of the lawsuits was filed by a coalition of 11 attorney generals from largely-Republican states, while other claims were filed by state representatives and private businesses.

We will probably see further rulings in the coming days and weeks from the federal courts, some following in the Fifth Circuit’s footsteps and blocking the ETS, while others may rule that the ETS was lawfully promulgated and should proceed to take effect. With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this OSHA ETS matter. Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen.

At the moment, however, the outcome of the OSHA ETS is uncertain. For home care providers, in view of the NY DOH’s strict vaccination mandate that has already been implemented, the OSHA ETS is, practically, only meaningful because of its potential to apply to CDPAP providers who are considered joint employers of the personal assistants. Moreover, once the RFO takes effect and FIs are definitively declared to be joint employers of personal assistants for all employment purposes, the OSHA ETS will certainly apply to CDPAP. For CHHAs and LHCSAs, however, as discussed above, the OSHA ETS has limited applicability.