Devine Millimet | NH Law Firm


Solal Wanstok, Esq.

November 19, 2021

On November 6, 2021,—one day after OSHA published its new COVID-19 Emergency Temporary Standard (ETS)—the Fifth Circuit Court of Appeals issued a very short preliminary ruling “staying” implementation of the mandate. On November 12, 2021, the Court reaffirmed its earlier stay and ordered OSHA to halt enforcement while the Fifth Circuit decides whether to grant a permanent injunction of the ETS.

In the wake of this decision, OSHA announced that it has suspended “implementation and enforcement of the ETS pending future developments in litigation.”

What happens now?

Petitions for review of the ETS have been filed in 11 of the 12 U.S. Circuit Courts of Appeals around the country. In an effort to consolidate this sprawling litigation, the Judicial Panel on Multidistrict Litigation assigned the Sixth Circuit Court of Appeals to hear all legal challenges to OSHA’s ETS. In the coming weeks or months, the Sixth Circuit will determine whether to continue, alter, or lift the preliminary stay. These issues will likely make their way to the United States Supreme Court for a final resolution. Although we expect this to happen on an expedited basis, it is difficult, at this time, to predict when we will have a final ruling on the enforceability of the ETS.  

Employer Takeaway

Because OSHA has suspended the ETS, employers with 100 or more employees are not required to meet the compliance deadlines imposed by that Standard. Pending future developments in court, the December 5 and January 4, 2022 deadlines associated with implementing a vaccine mandate or weekly testing program are no longer in effect. However, nothing in the ruling prohibits employers from voluntarily implementing mandatory vaccination or testing policies. If employers have already devoted significant time and resources to creating such policies, they may wish to proceed with implementation as OSHA intends to resume enforcement of the ETS if permitted.

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