The U.S. Supreme Court will decide early next month whether to stay the enforcement of OSHA’s ETS, pending the Court’s substantive decision on the regulation’s constitutionality. The ETS implements President Biden’s vaccine-or-test mandate for employers with 100 or more employees.

The government has until December 30 to respond to emergency stay requests submitted by various states and other opponents of the ETS. Because OSHA will begin enforcing the ETS on January 10 (with a no-citation period until February 9), employers are in a bit of pickle. That is particularly the case in California, where we have to wait for Cal/OSHA to take action on the federal ETS. (Remember, Cal/OSHA already readopted its own ETS, which is effective on January 14, 2022. See our December 17, 2021, post for details.)

The next Cal/OSHA meeting is set for January 20, 2022. The OSHA Standards Board will decide what to do with the OSHA ETS at that meeting, unless the Board sets a separate meeting for earlier in the month.

If your organization has at least 100 employees (yes, anywhere in the universe), it’s probably a good idea to call your employment lawyer. Now.