Written by S. Whitney Rahman

On November 12, 2021, the Fifth Circuit Court of Appeals affirmed its earlier stay of OSHA’s Emergency Temporary Standard (“ETS”) regarding COVID-19 vaccines.  The first stay was temporary, until the parties had the opportunity to brief the matter to the court, and applied only to that case.  After review, the court continued the stay, finding that the parties who filed in opposition to the ETS were likely to succeed on the merits in the case.  The court specifically ordered that “OSHA take no steps to implement or enforce the Mandate until further court order.”  BST Holdings, et al., v. OSHA, et al., No. 21-60845 at 17 (5^th Cir. Nov. 12, 2021).  Based on this action, OSHA has announced on its website that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Keep in mind that this is a preliminary stay, and that litigation on the ETS is pending in every circuit court.  While it is not clear when the stay will be lifted, or if the ETS mandate will survive litigation, it is prudent to prepare for the eventuality that the ETS will survive these legal challenges, at the least by taking actions to understand and be ready for the possible implementation of the ETS, and by keeping abreast of its status.

If you have any questions about this or any other employment law issue, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237, Grace C. Nguyen Bond at gcnb@blakingerthomas.com or (717) 509-7226, or Beth Ann Ebersole at bae@blakingerthomas.com or (717) 509-7219.

**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist. This article was published on November 16, 2021.  Please check back or contact us for the most up-to-date information.**