On Saturday, November 6, 2021, the federal Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) entered an Order granting a temporary stay blocking the implementation of OSHA’s Emergency Temporary Standard (ETS) COVID-19 rules. The extensive OSHA rules were published in the Federal Register on Friday, November 5, 2021.
As we blogged about here, the ETS would require employers with 100 or more employees to implement policies mandating that certain employees be vaccinated or provide documentation of a negative COVID-19 test at least every seven days.
The Order was issued in one of several lawsuits filed around the country on Friday challenging the legality of the ETS. The Fifth Circuit Court of Appeals wrote that the pending lawsuit raised “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS.
The Order means the ETS is temporarily stayed until further notice. The Court ordered the parties to submit further briefing about the validity of the ETS this week. The Order is not a final ruling on the validity of the ETS or future enforcement of the ETS. The bigger question left in the wake of the Order—what should employers do now?
The future of the ETS, and the effect of the Order across other parts of the Country, remain uncertain due to pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines.
Considering how fast the litigation is moving, employers should continue preparing for the ETS as if it is going to take effect with compliance deadlines on December 5th, 2021 and January 4th, 2022.
This means surveying your workforce to find out who is vaccinated against COVID-19 and who is not; drafting the required policy; disseminating the required educational materials; and researching testing options for employees who do not get vaccinated.
Do you have questions about preparing for compliance with OSHA’s new rules? Don’t worry—we are here to help!
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