November 29, 2021

Volume XI, Number 333

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Fifth Circuit Affirms Stay of OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing

On November 12, 2021, in a strongly worded opinion, the United States Court of Appeals for the Fifth Circuit affirmed its stay of the OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing (“ETS”). (See Vedder Price bulletin on the ETS). The Court concluded that "[t]he mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s),” and that the ETS likely exceeds OSHA’s statutory rule-making authority.

Additional petitions to stay the ETS have been filed in most of the other Circuit Courts of Appeals, some of which may provide a more hospitable forum for the government’s defense of the ETS. It is expected that on or around November 16, 2021, the Judicial Panel on Multidistrict Litigation will conduct a lottery to randomly select a single circuit court to hear all of these petitions in a consolidated format. The court designated by this lottery may ultimately decide to either lift or extend the Fifth Circuit’s stay of the ETS.

Employers are advised to consult with legal counsel regarding the impact of the stay on the OSHA ETS and plans they are formulating to comply with the ETS if the stay is lifted.

© 2021 Vedder PriceNational Law Review, Volume XI, Number 319
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About this Author

Elizabeth N. Hall, Vedder Price Law Firm, Labor Employment Attorney
Shareholder

Elizabeth N. Hall is a shareholder  in the firm’s Labor and Employment Practice Area.  Her experience includes defending employers before state and federal courts and administrative agencies in all types of individual employee and class action labor and employment litigation including equal employment opportunity, wrongful and retaliatory discharge and wage and hour issues.  Ms. Hall has successfully argued procedural and employment discrimination issues in the United States Court of Appeals for the Seventh Circuit, and has particular expertise managing electronic discovery in complex...

312-609-7795
Thomas G. Hancuch, Employee Benefits Lawyer, Vedder Price law firm
Shareholder

Thomas G. Hancuch is a shareholder at Vedder Price where he represents employers in all aspects of employee benefits, labor and employment law. His practice focuses on employee benefit plan design and administration, benefit claims and litigation; employee relations and benefits aspects of mergers; acquisitions; workforce reductions and outsourcing; leaves of absence and accommodation of employees with disabilities; employment discrimination; harassment and retaliation claims; employee leasing and worker classification; executive compensation; wage and hour laws;...

312-609-7824
Cara J. Ottenweller, Vedder Price Law Firm, Labor Employment Attorney
Shareholder

Cara J. Ottenweller is an Associate in the firm’s Labor and Employment practice area. Ms. Ottenweller counsels and represents employers in a variety of traditional labor and employment law matters, including U.S. federal and state litigation and administrative proceedings before the Equal Employment Opportunity Commission, the National Labor Relations Board and other federal, state and local agencies. Ms. Ottenweller’s experience includes advising clients on a broad range of day-to-day human resources issues such as EEO compliance, antidiscrimination laws, employee discipline and discharge...

312-609-7735
Patrick W. Spangler, Vedder Price Law firm, Labor Employment Attorney
Shareholder

Patrick W. Spangler is an attorney at Vedder Price, where he represents employers in all aspects of employee benefits, labor and employment law. His practice focuses on: EEO and ERISA litigation; employee benefit plan design and administration; and labor, employment and benefits issues associated with major business changes, including reorganizations, facility closures and reductions in force.

312-609-7797
Associate

Aaron A. Bauer is an Associate in Vedder Price’s Chicago office, and is a member of the firm’s Labor & Employment group.

 Mr. Bauer has experience working with clients in support of wage & hour matters and employment discrimination matters. He also has experience advising corporate clients on compliance issues within state and federal employment laws.

While in law school, Mr. Bauer worked at the UCLA Veterans’ Legal Clinic, helping low-income veterans access VA benefits, and researching homelessness within the...

312-609-7726
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