On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of OSHA’s Emergency Temporary Standard (“ETS”), which was issued by OSHA just one day earlier. The ETS requires all employers with 100 or more employees to implement policies mandating that employees be vaccinated or provide documentation of a negative COVID-19 test at least once a week.  The ETS became effective immediately upon publication in the Federal Register on November 5, 2021, and full compliance is required within 60 days.  

The Order was issued in one of a number of lawsuits filed across the country challenging the constitutionality of the ETS. In granting the stay, the Court noted that the ETS raises grave statutory and constitutional issues. The ETS is stayed until further notice by the Court. The Court also ordered the parties to submit further legal briefs on an expedited basis addressing the validity of the ETS. The Order issued on November 6 is not a final ruling on the validity of the ETS but will temporarily halt its implementation while the Court addresses the grave statutory and constitutional issues presented. 

The future of the ETS is uncertain. Schenck Price Smith & King, LLP will continue to monitor the legal proceedings and report on any developments regarding the ETS. If you are concerned about your workplace policy and protocols for addressing COVID-19, or if you want to continue planning and preparing for the ETS while the litigation is pending, our labor and employment law attorneys can help. Please contact Joseph Maddaloni, Jr., or Cynthia L. Flanagan for assistance.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.