A federal appeals court has temporarily blocked OSHA’s mandate-or-test Emergency Temporary Standard (ETS). On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard in one of several lawsuits filed around the country challenging the legality of the ETS. The stay order issued on November 6th is not a final ruling on the validity of the ETS but will halt its implementation, at least temporarily.
The Fifth Circuit Court of Appeals wrote that the pending lawsuit raised “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS. The Court stayed the ETS until further notice by the Court and provided the federal government until 5:00 p.m. Monday, November 8, 2021, to respond to the lawsuit’s request for a permanent injunction.
The future of the ETS remains uncertain due to pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. Accordingly, it may be prudent for employers to continue preparing for the ETS as if it is going to take effect while litigation continues.
Editor's Note: A webinar - The OSHA Employee Vaccine Mandate - will be offered once the ETS compliance date is final. Date and time to be announced.