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BREAKING: Federal Appeals Court Temporarily Blocks OSHA Vaccinate-Or-Test Mandate For Business With 100+ Employees

On Saturday, the Fifth Circuit U.S. Court of Appeals issued a temporary stay blocking OSHA’s vaccinate-or-test Emergency Temporary Standard (“ETS”) for businesses with 100+ employees. The Fifth Circuit found that the ETS appears to present “grave statutory and constitutional issues.” Today, the Department of Labor has a chance to argue against an extension of the stay. In the coming days, the Fifth Circuit is expected to make a ruling on whether to extend the temporary stay. In the meantime, the stay applies nationwide.

Meanwhile, several other lawsuits throughout the country have been filed challenging the legality of the ETS. There is a strong likelihood that the legal challenges to the ETS in the federal courts will be consolidated, fast-tracked, and ultimately proceed to the United States Supreme Court for a final decision.

So, what does this mean for employers? Although the stay order may appear to alleviate the urgency of compliance, we believe the best course of action is to continue to plan and prepare for implementing the ETS. As we stated in our Alert last week, the effective date for most of the ETS requirements is December 5, 2021, which is only a few weeks away. The deadline for employees to be vaccinated or submit to weekly testing is January 4, 2022. If the OSHA mandate is upheld, these deadlines could stand.

We will continue to monitor the legal developments and keep you posted. In the meantime, please reach out to McGrath North’s Labor and Employment Group if you have any questions regarding your company’s action plan under the ETS.