On Sept. 9, U.S. President Joseph Biden issued a memorandum entitled "Path out of the Pandemic," which addresses the White House’s strategy for combating the ongoing global health crisis caused by COVID-19. Most significantly, Biden’s plan expressly directed the Occupational Safety and Health Administration to develop an emergency rule in order to increase the number of vaccinated workers in the private sector.

Similar to the rollout of the vaccination mandate for health-care workers, President Biden instructed OSHA to issue the rule through the Emergency Temporary Standard procedure, which allows OSHA to enact and enforce regulations immediately where a "grave danger" to worker safety is present.

In mid-October, OSHA completed its rule and sent it to the White House’s regulatory office for final review. On Thursday, Nov. 4, the ETS was released for publication in the Federal Register.

... Unsurprisingly, the first legal challenge has already been filed. On Nov. 5, Kentucky, Idaho, Ohio, Oklahoma, Tennessee and Virginia filed an emergency motion for stay of the ETS pending final judgment, which asks the court to put the ETS on hold until the legal merits of the challenge are decided. The motion was granted the next day. It is unclear how the court will respond to argument; however, more challenges are likely to follow. Given the uncertainty, employers should remain focused on meeting the compliance requirements of the ETS rather than banking on judicial intervention.