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The emergency temporary standard (“ETS”) issued by the U.S. Occupational Safety and Health Administration (OSHA) on November 4, 2021 (here), mandating COVID-19 vaccinations or testing for all employers with 100 or more employees was stayed by the U.S. Court of Appeals for the Fifth Circuit on November 12, 2021 (opinion here). As a result, OSHA has suspended the implementation and enforcement of the ETS pending further developments in the litigation. The numerous cases challenging the ETS have now been consolidated, and the U.S. Court of Appeals for the Sixth Circuit will decide whether the ETS should be enjoined, modified, or upheld. As of today, the Sixth Circuit has not set a schedule for briefing and argument in the case. Regardless of the decision by the Sixth Circuit, it is likely that the U.S. Supreme Court will ultimately decide whether the ETS can be implemented and enforced by OSHA.

The practical effect of the ETS being stayed is that the compliance deadlines of December 5, 2021, and January 4, 2022, are unlikely to be enforced. Although OSHA has suspended implementation and enforcement, it has not issued any statement extending those deadlines. However, a decision by the Sixth Circuit could be handed down at any time, which could result in covered employers having to implement and comply with the ETS in a very short timeframe. Although the strategy is not free from doubt, on balance we believe that covered employers should continue to develop their vaccination or testing policies and other procedures in order to be prepared to comply with the ETS if the Sixth Circuit or Supreme Court rule that the ETS can be implemented and enforced by OSHA. The stay of the ETS has no effect on the deadlines for federal contractors and subcontractors covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance and employers who provide healthcare services and are subject to the Healthcare ETS.

As always, the foregoing is for informational purposes only, does not constitute legal advice regarding any particular situation, and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

 This update was prepared by Kevin A. Sullivan and Charles S. Elbert.