On November 12, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate COVID-19 vaccinations. According to the Court’s Order, OSHA is prohibited from pursuing steps to implement or enforce the ETS until further notice is provided. In response, on November 17, 2021, OSHA issued a statement proclaiming that they have “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Because several lawsuits were filed across the country concerning the ETS, a lottery determined that the issue is next to be heard by a panel of three (3) judges from the Sixth Circuit Court of Appeals. Eventually, the constitutionality of the ETS could be determined by the United States Supreme Court.
Although OSHA has suspended implementation and enforcement of the ETS, keep in mind it would not have been necessary for OSHA to begin implementation and enforcement activities until December 5, 2021, at the earliest, or the more likely date of January 5, 2022. In other words, employers should continue to monitor this situation closely to ensure they are not surprised by a quick decision.
Also, note that OSHA’s announcement yesterday concerns only the ETS and not the mandates affecting federal contractors or CMS Medicare staff.
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.