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November 9 2021

5th Circuit Stays OSHA Vaccine ETS, Employers Should Continue Preparation

By: Dominic T. Clolinger

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay enforcement of the Occupational Safety and Health Administration’s (“OSHA”) November 5, 2021, Emergency Temporary Standard (“ETS”).  The ETS requires all employers with 100 or more employees to adopt either 1) a written mandatory full-vaccination policy or 2) a written policy which permits employees to either become fully vaccinated or undergo weekly testing and wear a face covering.  Per the Circuit’s order, the ETS is stayed due to potential statutory and constitutional issues.

The 5th Circuit did not specify in its order whether the stay applies nationwide or only applies to the 5th Circuit.  The OSHA ETS has also been challenged in the 6th Circuit, which has jurisdiction over Michigan.  Mika Meyers will continue to monitor the status of the various lawsuits and their impact on the effectiveness of the ETS.

Due to the rapidly developing nature of this area of law, employers should remain vigilant and begin preparations to comply with the ETS.  For a general summary of the ETS, please see our article, OSHA Issues Emergency Vaccination and Testing Standard for Employers With 100+ Employees.  If employers have specific questions about how the ETS affects their business, employers should contact Nikole Canute, Scott Dwyer, or Nate Wolf as soon as practicable.