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OSHA Temporarily Suspends ETS Employer Mandate

Employers should take note that, following the November 4, 2021 issuance by the Occupational Safety and Health Administration (OSHA) of the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccines or require weekly testing and face coverings, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, and Mississippi) temporarily suspended (or stayed) enforcement of the ETS on November 6, 2021. On November 12, 2021, the Fifth Circuit ordered a continuation of the stay of the ETS and directed OSHA to take “no steps to implement or enforce the Mandate until further Court Order.” Additional legal challenges have been raised in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits as well.

Consequently, OSHA advised that “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Thus, at the present time employers are no longer legally required to comply with the compliance dates initially set forth in the ETS and its future remains uncertain at this time. However, a covered employer may proceed voluntarily and institute vaccine policies and mask mandates in order to protect the health and safety of its workforce and in the event that the stay is lifted from the ETS vaccine policy and mask mandate.

This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.