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OSHA Suspends Vaccinate-or-Test Mandate

Nov. 18, 2021
The federal Fifth Circuit Court of Appeals has stayed enforcement of the Emergency Temporary Standard (ETS).

The Labor Department's Occupational Health and Safety Administration (OSHA) has suspended enforcement of its Emergency Temporary Standard that requires all employers with more than 100 employees require their employees either to be vaccinated against the COVID virus, or failing that to be tested for the virus on a weekly basis.The decision was the result of a lawsuit brought in the US Court of Appeals for the Fifth Circuit.

OSHA posted a statement on its website on Thursday, November 17th, stating:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Keith Wilkes is a labor and employment partner/shareholder at the national law firm Hall Estill.

"Whether OSHA will reestablish deadlines for implementation and enforcement of the ETS depends on the anticipated decision of another federal appeals court, the Sixth Circuit. That circuit was chosen by a ping-pong ball lottery process to hear a consolidation of at least 34 legal challenges to the ETS from across the country," Wilkes says.

"The Sixth Circuit is generally not regarded to be as conservative as the Fifth Circuit, but it’s a close second. Eleven of the 16 judges on the Sixth Circuit Court of Appeals were nominated by a Republican president, however, only three judges will sit on the panel that decides the consolidated case. The matter will most likely be decided by the United States Supreme Court. Although the highest court has a conservative majority, it has yet to interfere with COVID-19 vaccination mandates," Wilkes says.

"Covered employers need to stay abreast of the legal status of the ETS. If the mandate comes out of the federal appellate court process intact, you can count on OSHA immediately lifting its suspension, establishing new deadlines, and giving employers a whole lot to do in an anticipated short amount of time," Wilkes says.

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