Over the weekend of Nov. 13, 2021, the Federal Fifth Circuit Court of Appeals re-affirmed its stay of the Occupational Health and Safety Administration’s (OSHA’s) temporary standard. Shortly after, OSHA issued a statement that it was suspending enforcement of its Emergency Temporary Standard (ETS) regarding vaccination requirements for employers with 100 or more employees. OSHA’s full statement is as follows:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

On Nov. 16, 2021, the Judicial Panel on Multidistrict Litigation (JPML) will, by lottery, select which Circuit Court will handle the challenges to the OSHA Rule going forward. There are ETS-related lawsuits currently pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh and D.C. Circuit Courts. Each will have the same chance of being selected in the lottery. Whichever court receives the assignment is expected to act fairly quickly. Parsons Behle & Latimer employment lawyers continue to advise that companies with 100 or more employees prudently prepare to implement policies to comply with the Rule in the event that it is ultimately upheld by the courts.

Amy Lombardo is a member of Parsons Behle & Latimer’s Employment & Labor and Litigation practice teams. To discuss this or other employment-related issues, contact Ms. Lombardo at (208) 562-4900 or send an email to alombardo@parsonsbehle.com .