December 6, 2021

Volume XI, Number 340

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December 06, 2021

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OSHA Suspends Emergency Temporary Standard on COVID-19 Vaccinations and Testing for Employers with 100 or More Employees

On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) that establishes minimum COVID-19 vaccination and testing requirements for private employers with 100 or more employees throughout the United States.

Shortly after the ETS was published, several states and businesses sued to declare that the rule was unconstitutional and beyond OSHA‘s statutory authority. On November 6, 2021 the Fifth Circuit Court of Appeals (based in New Orleans) issued a very short preliminary ruling “staying” implementation of the ETS pending further briefing in the court. Then, on November 12, 2021 the Fifth Circuit entered a long opinion in which it has issued a preliminary stay of the law.

In doing so, the court signaled in the strongest of possible terms that it was poised to find that the rule does exceed OSHA‘s statutory authority in several ways and is unconstitutional. You can read the entirety of the opinion here.

In recognition of the court‘s ruling, the administration declared yesterday that OSHA has suspended all activities relating to the implementation and enforcement of the ETS pending further litigation. However, this is still a temporary ruling and will be appealed, most likely all the way to the Supreme Court, which would make the final decision.

Although not expressly stated, this means that employers under the rule have a reprieve of the upcoming December 5, 2021 deadline, and likely the January 4, 2022 deadline as well, as the courts will take some time to provide much-needed clarity and a final decision.

This week, the Florida legislature is meeting in a special session in an effort to consider legislation that would countermand at least parts of the OSHA rule.

Businesses should stay tuned to see what, if any legislation, is passed by the Florida legislature, how the courts will ultimately decide on the fate of the OSHA rule, and how these two will play out if the courts determine that the OSHA rule is valid.

This court decision has no effect on vaccine mandates applying in healthcare settings or to federal contractors and subcontractors.

© 2007-2021 Hill Ward Henderson, All Rights ReservedNational Law Review, Volume XI, Number 320
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About this Author

Ryan M. Guerin - Associate HWH Law complex commercial litigation labor and employment
Associate

Ryan is an associate in the firm’s Litigation group. His practice primarily focuses in the area of labor and employment. Ryan also covers an array of general and complex commercial litigation matters.

Ryan represents employers in litigation involving claims of employment harassment, discrimination, retaliation, leave laws, wage and hour laws, whistleblower laws, enforcement of and defense against non-solicitation and non-competition agreements, background check laws, and other employment-related claims. Ryan represents numerous industries, including clients...

813-222-8503
Gordan Hill Employment Litigator Hill Ward Henderson
Shareholder

Gordon is a Shareholder in the firm’s Litigation and Employment Law Groups, and is the firm's Assistant General Counsel for Labor and Employment matters. His practice primarily involves employment litigation and counseling, as well as noncompete litigation and general commercial litigation.

In his employment practice, Gordon advises, represents and defends corporate clients in a broad spectrum of employment-related issues. Gordon has successfully defended clients in a wide variety of employment-related litigation, but...

813.222.8506
Robert A. Shimberg Commercial Litigation Attorney Hill Ward Henderson
Shareholder

Robert is a Shareholder in the firm's Litigation Group. His primary practice areas include commercial litigation, corporate compliance, cybersecurity, governmental relations and corporate investigations. He was formerly a prosecutor with the Hillsborough County State Attorney's Office.

Robert has provided compliance-related services and training to over 300 businesses around the country. He has defended businesses against consumer claims, class action lawsuits, and provided representation in connection with government agency inquiries and investigations and...

813.227.8469
Jeff Wilcox Litigation Attorney Hill Ward Henderson Law Firm
Shareholder

Jeff is a Shareholder in the firm’s Litigation Group. His practice primarily focuses on employment law, including wage-hour compliance, FMLA and ADA compliance, allegations of discrimination and harassment, non-compete litigation, and handbook and policy drafting. 

Jeff is active in both professional and Bar-related activities.  He currently serves as a Director on the Hillsborough County Bar Association, Young Lawyers Division Board, and is a member of the Employment and Labor Law Committee in the Defense Research Institute.  In 2014, Jeff received the Hillsborough County Bar...

813.222.8725
Kirsten Vignec Employee Benefits Attorney HIll Ward Henderson
Shareholder

Kirsten is a Shareholder in the firm's Corporate & Tax Group and practice co-chair of the Executive Compensation & Employee Benefits Group. Kirsten’s practice involves employee benefit matters associated with the design and ongoing administration of executive deferred compensation plans, welfare benefit plans, Section 401(k) plans, profit sharing plans, and pension plans. Kirsten represents tax-exempt entities, for-profit, private, and publicly-traded companies.

Kirsten represents clients before the IRS, DOL, and the PBGC with respect to employee benefits matters.

She...

813.222.8731
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