Fifth Circuit Issues Temporary Stay of OSHA’s new Emergency Temporary Standard on COVID-19 Vaccination and Testing

Just a day after the U.S. Occupational Safety and Health Administration (“OSHA”) published its new Emergency Temporary Standard on COVID-19 Vaccination and Testing (“ETS”) (read our prior alert here) in the Federal Register, a federal appeals court temporarily stayed its enforcement.  The United States Circuit Court of Appeals for the Fifth Circuit issued an Order on Saturday, November 6, 2021, which granted the emergency motion, stating that “the petitions give cause to believe there are grave statutory and constitutional issues” with OSHA’s ETS.

The petitioners, which include a group of private entities as well as the states of Texas, Louisiana, Mississippi, South Carolina, and Utah, filed petitions seeking a permanent injunction barring the enforcement of the ETS.  The Court’s temporary stay Order sets forth an expedited briefing schedule that requires OSHA and the United States Department of Labor to submit opposition briefs on November 8, with petitioners’ replies due November 9.  The temporary stay will remain in effect pending further action of the Court upon expedited review.

Similar lawsuits have been filed in the Sixth, Seventh, Eighth, and Eleventh Circuits challenging the ETS.  Employers potentially subject to the ETS should monitor the situation closely for updates in the Fifth Circuit and elsewhere, and may wish to consult with legal counsel with respect to their obligations during the pendency of these legal challenges.

If you have questions about OSHA’s COVID-19 vaccination ETS, mandatory vaccination requirements, or other general questions about OSHA compliance, please contact Jason Markel (716.848.1395), Glen Doherty (518.433.2433), Charles H. Kaplan (646.218.7513), or any member of our Labor & Employment Practice.