Fifth Circuit Stays Enforcement of the Federal OSHA Emergency Regulations Requiring Employees to Vaccinate or Test

Downey Brand LLP

As part of the Biden administration’s plans to curb the COVID-19 pandemic, the Federal Occupational Safety and Health Administration (OSHA) issued new Emergency Temporary Standards (ETS) on November 5, 2021. The ETS mandate that all employers of 100 or more employees require their employees to vaccinate themselves against COVID-19 or test themselves weekly for the disease.

Since then, at least 24 states in multiple judicial circuits have filed lawsuits challenging the OSHA ETS and requesting that the ETS be stayed until the lawsuits are resolved.

On November 12, 2021, the Fifth Circuit Court of Appeals temporarily stayed implementation and enforcement of the OSHA ETS.

When lawsuits are filed in multiple circuits challenging the same agency regulation, one of those circuits is randomly selected to make the final decision on those challenges. On November 16, 2021, the Sixth Circuit Court of Appeals was randomly selected to hear the challenges. The Fifth Circuit’s stay will remain in place until the Sixth Circuit decides whether to issue a permanent injunction against the ETS.

In addition to testing and vaccination requirements, the ETS also regulate facial coverings, social distancing, and employee medical record retention for employers with more than 100 employees. The testing and vaccination rules were scheduled to take effect January 04, 2022. The other ETS regulations were scheduled to take effect December 05, 2021.

Although the Federal OSHA ETS is stayed, employers must still comply with Cal/OSHA’s COVID-19 Emergency Temporary Standards, the Safer Federal Workforce Task Force’s Guidance for Federal Contractors and Subcontractors, and the Department of Health and Human Services Health Care Staff Vaccination rule.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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