Fifth Circuit Court of Appeals Blocks Enforcement of OSHA Emergency Temporary Standard

Last week, the Occupational Safety and Health Administration (OSHA) issued their Emergency Temporary Standard (ETS Mandate) which generally requires all employers with 100 employees to implement a policy of requiring employees to receive COVID-19 vaccination or test for COVID-19 on a weekly basis.  More regarding the ETS can be found here  As expected, several States and private employers filed a Petition for Review of the ETS with the United States Court of Appeals for the Fifth Circuit located in New Orleans seeking to block the regulation.

On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals issued a stay of the ETS’s mandate, leaving many employers wondering what the injunction actually means in regards to complying with the ETS.  The Fifth Circuit Court of Appeals has fast-tracked the issue by granting the preliminary injunction until the parties can fully brief the Court on their positions.  The Government has until 5:00 p.m. on November 8, 2021, to submit a brief, and the challengers may submit a reply by 5:00 p.m. on November 9, 2021.  Accordingly, the Court’s decision whether to grant a permanent injunction could be made as soon as later this week.  However, because the Fifth Circuit’s current order is essentially temporary, at this time it would be prudent for employers to continue making any preparations necessary to comply with the ETS by December 5, 2021.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutTimothy Bubenik
Tim represents management in all areas of labor and employment law.