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1/10/2022 | Articles & Alerts, Employment, News & Resources

On Friday evening November 12, 2021, the Fifth Circuit Court of Appeals reaffirmed the stay prohibiting the implementation of the OSHA Emergency Temporary Standard (ETS) which would require private employers with 100 or more employees to mandate that their employees either get vaccinated against COVID-19 or submit to weekly testing for the virus.

In reaffirming the stay, the Court stated that the ETS “grossly exceeds OSHA’s statutory authority” and that “OSHA may take no steps to implement or enforce the Mandate until further
court order.” Among the reasons for continuing the stay and prohibiting enforcement of the ETS, the Court stated that:

• “[t]he Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address”; and

• The “Mandate exposes [petitioners, i.e. states and private challengers] to severe financial risk” and “threatens to decimate their workforces (and business prospects).”

In light of the Court’s stated bases for prohibiting the implementation of the ETS, it is unclear whether OSHA will seek to amend the ETS to address the Court’s concerns or whether the Biden administration will pursue further appeals seeking to implement the ETS as proposed.  We will provide further updates when available but for now, employers DO NOT need to take any steps to implement the ETS. If you have any questions, please contact Kimberly L. Russell, Esquire at or (610) 941-2541.