November 29, 2021

Volume XI, Number 333

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Court of Appeals Stays OSHA’s Emergency Temporary Standard

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard issued this week by the Occupational Safety and Health Administration. The ETS would require employers with 100 or more employees to implement policies mandating that employees be vaccinated or provide documentation of a negative COVID-19 test at least every seven days.

The order was issued in one of several lawsuits filed around the country challenging the legality of the ETS. The Fifth Circuit Court of Appeals wrote that the pending lawsuit raised “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS. The Court stayed the ETS until further notice by the Court and ordered the parties to submit, on Monday and Tuesday of next week, further briefing about the validity of the ETS. The stay order issued on November 6 is not a final ruling on the validity of the ETS but will halt its implementation at least temporarily.

The future of the ETS remains uncertain due to pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. Accordingly, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 311
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About this Author

Andrew Metcalf, Employment Attorney, Ogletree Deakins Law Firm, Human Resources Counseling, St. Louis lawyer
Associate

Andrew represents businesses and public organizations in all aspects of employment law, including both litigation and human resources counseling. He assists clients facing lawsuits and administrative charges alleging employment discrimination, harassment, retaliation, and violations of other workplace laws and regulations, including the FMLA and FLSA. He has guided clients through investigations by the EEOC, Missouri Commission on Human Rights, the Department of Labor, and OSHA. Having extensive experience with complex employment litigation matters, Andrew offers strategies to ensure...

314-827-3430
Stephen Woods, Ogletree Deakins Law Firm, Greenville, Labor and Employment Litigation Attorney
Shareholder

Stephen Woods represents and counsels companies on a wide range of labor and employment law issues—though a significant focus of his practice is on background checks (counseling and litigation) and RIFs (including the ADEA/OWBPA, WARN, and state mini-WARNs). He assists national, regional, and local clients on preventive analysis and advice, class and single-plaintiff employment litigation, and EEOC and state agency charges. He is the chair of both the firm's O-D Comply compliance solutions group and the Background Checks Practice Group and the shareholder-author of the...

864-271-1300
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