On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s Vaccine Emergency Temporary Standard (“ETS”). In response, OSHA has stated that while it “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.” On November 16, 2021, all lawsuits challenging the ETS were consolidated in the U.S. Court of Appeals for the Sixth Circuit, which includes Michigan. It is unclear at this time whether the Sixth Circuit will alter the Fifth Circuit’s stay. The Sixth Circuit’s decision will likely be appealed to the United States Supreme Court.
We will continue to monitor developments surrounding the ETS. If employers have specific questions about how the ETS affects their business, employers should contact Nikole Canute, Scott Dwyer, Nate Wolf, or Dominic Clolinger as soon as practicable.