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On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard issued this week by the Occupational Safety and Health Administration. The ETS would require 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 every seven days.

The order was issued in one of several lawsuits filed around the country challenging the legality of the ETS. 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 ordered the parties to submit, on Monday and Tuesday of next week, further briefing about the validity of the ETS. The stay order issued on November 6 is not a final ruling on the validity of the ETS but will halt its implementation at least temporarily.

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, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on the firm’s Workplace Safety and Health blog and Coronavirus (COVID-19) Resource Center as additional information becomes available.

For more information on OSHA’s COVID-19 ETS, and the status of legal challenges to the ETS, please join us for our upcoming webinar, “It’s Here—OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard,” on Tuesday, November 9, 2021, from 2:00 to 3:00 p.m. EST. The speakers, Melissa A. Bailey and John F. Martin, will discuss the key provisions of the newly issued ETS, and the status of pending legal challenges. Register here.


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