Court of Appeals Stays OSHA’s Emergency Temporary Standard

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard (“ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) and published in the Federal Register on November 5, 2021. The ETS generally requires most employers with 100 or more employees to implement either a mandatory COVID-19 vaccination policy or a policy allowing employees who are not vaccinated to test weekly and wear a mask. The ETS also requires tracking employee vaccination status, providing time off for vaccination and recovery, and certain employee notices and recordkeeping.

The Court temporarily stopped the implementation of the ETS pending further briefing. However, it will take weeks for this case to work its way through the courts and to receive a definitive final ruling on the merits. Given that the first deadline for compliance under the ETS is December 5, 2021, employers should consider taking appropriate steps to prepare to comply with the applicable provisions of the ETS (with the exception of testing) by December 5, 2021 and with the testing requirements by January 4, 2022.

There have been several other lawsuits filed around the country similarly challenging the legality of the ETS. We continue to monitor developments with respect to the implementation of the ETS and the related legal challenges. Please do not hesitate to contact the Employment Group with any questions.

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