Fifth Circuit halts OSHA’s enforcement of COVID-19 Vaccination and Testing ETS

On November 12, 2021, the Fifth Circuit Court of Appeals issued a second stay halting OSHA’s enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).  The stay will remain in effect while the Fifth Circuit considers whether to issue a permanent injunction. Meanwhile, challenges and requests for an emergency stay have been filed and are pending in ten other appellate courts, including the Sixth Circuit Court of Appeals, which covers Ohio.

Ultimately, the merits and enforceability of the ETS will be decided by one of the thirteen federal appellate courts. When challenges to a federal agency order are filed in at least two courts of appeals within ten days of the issuance of the order, a single appellate court is chosen at random through a lottery system to hear the case.  The lottery for this case is expected to take place on or about November 16, 2021. All pending proceedings will be consolidated and transferred to the selected court, which may modify, revoke or extend the stay put into place by the Fifth Circuit.  It is expected that any decision made by the appellate court will be appealed to the United States Supreme Court for review.

For now, OSHA is prohibited from enforcing the ETS while the stay remains in effect. We will continue to monitor the situation closely and update you with further developments.  As we wait, employers should consider beginning preparations and exploring options for testing compliance in the event the stay is lifted or modified by the circuit court selected in the lottery system. If you need assistance with your compliance preparations, including how to collect information from employees regarding proof of vaccination, contact your counsel.