On Saturday, Nov. 6, 2021, the 5th Circuit Court of Appeals ordered a temporary stay on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and Testing for the workplace.

The stay was extended pending judicial review on Nov. 12, 2021. The order effectively prevents enforcement of this ETS until a final decision regarding the legality of this standard is published.

On Nov. 16, 2021, all lawsuits filed challenging the ETS were consolidated for review in the 6th Circuit Court of Appeals. As a result, OSHA has suspended ETS implementation and enforcement pending future developments in the litigation. This situation is fluid and additional action by the courts is expected.

Temporary Stay

The stay was ordered in one of multiple lawsuits challenging the validity of OSHA’s COVID-19 ETS. These lawsuits request a permanent injunction against the ETS. The Court justified the order because it found “cause to believe there are grave statutory and constitutional issues” with the OSHA vaccination mandate.

This stay will remain in place until a final decision regarding the ETS is published.

Impact on Employers

While the temporary stay effectively prevents enforcement of the ETS until a final decision on the legality of the standard is published, the law has not been permanently delayed or vacated officially.

As a result, affected employers should continue in their efforts to become familiar with and understand the various provisions of the ETS in the event future compliance is required. Affected employers should also continue to monitor developments of this legal challenge to learn more about the viability of, and their compliance obligations with, the ETS.

Important Dates

Nov. 5, 2021

ETS publication and effective date

Nov. 6, 2021

Temporary stay ordered for ETS

Dec. 6, 2021

Compliance date for most ETS

provisions

Jan. 4, 2022

Compliance date for ETS testing

requirements

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