Fifth Circuit Court of Appeals Stays OSHA's COVID-19 Vaccine and Testing Mandate—Next Steps for Employers

Lawsuits have been filed around the country challenging OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) issued Nov. 5, 2021. On Nov. 6, 2021, the U.S. Fifth Circuit Court of Appeals (which includes Louisiana, Mississippi, and Texas) responded quickly to one of the lawsuits filed and issued a temporary stay of the ETS. The Fifth Circuit has ordered expedited briefing this week on the statutory and constitutional issues raised in the lawsuit. The Fifth Circuit's stay is not a final ruling on the validity of the ETS, but it will temporarily halt its implementation.
 
Other federal circuit courts are also expected to issue rulings soon on the ETS. In the end, there will likely be a ruling from the circuit court yet to be selected through the process set up by the U.S. Judicial Panel on Multidistrict Litigation, and that ruling will apply to all employers across the country. There is the possibility that the U.S. Supreme Court will ultimately rule on the validity of the ETS as well.
 
The Best Course for Employers
For now, the final result of the litigation challenging the ETS is uncertain. Given that it will take a significant amount of time for many covered employers to prepare to comply with the ETS, the best course for most employers is to continue to do so and be ready to implement it in the event the ETS is upheld.
 
For further guidance on the ETS, view: "What Employers Need to Know About OSHA's New Vaccine and Testing Requirements"

We Can Help
Maslon’s Labor & Employment Group is available to answer questions about the litigation involving the ETS. We will also provide updates on important developments in the weeks ahead.