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FOS’s November 5, 2021 Client Alert, “OSHA Releases COVID-19 Vaccine Requirements,” described in detail OSHA’s Emergency Temporary Standard (“ETS”) which contains vaccination and/or testing requirements for employers with 100 or more employees.

The ETS provided that employers must comply with its vaccination or testing requirements by January 4, 2022, and that unvaccinated employees must wear face coverings on and after December 5, 2021.

As contemplated in FOS’s alert, the ETS was challenged in court almost simultaneously with its publication, resulting in a temporary stay of implementation and enforcement of the new rules. On November 12, 2021, the Fifth Circuit Court of Appeals upheld and continued the injunction, noting that, while it was not formally or finally ruling on the ETS’s substance, the court viewed the ETS as overly broad.

Because numerous other legal challenges to the ETS have also been filed, a lottery will be held today which will determine which federal court will hear all such challenges. In response to these lawsuits and the Fifth Circuit’s stay, OSHA announced that it has stopped efforts to implement or enforce the ETS until the legal challenges are resolved.

While it will likely take several weeks or months before the selected court issues its decision (from which appeals all the way up to the U.S. Supreme Court are likely), the December 5, 2021 and January 4, 2022 “deadlines” are suspended.

FOS will continue to monitor these proceedings as they develop.  Employers will need to continue to be responsive and flexible during these uncertain pandemic times. In the meantime, employers subject to the ETS should consider drafting policies and procedures which could be implemented if the ETS is ultimately upheld in whole or part.

FOS stands ready to answer any questions you have regarding the ETS or any other legal issue.

Be well.