As we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.

On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most employers with at least 100 employees must, among other things, impose an indoor mask mandate for unvaccinated workers, and January 4, when covered employers must mandate COVID-19 vaccination or, in the alternative, vaccination or weekly testing, the Fifth Circuit panel’s temporary ban does not have immediate effect. However, the case has emboldened groups of businesses, religious groups, and at least half the states to mount a serious challenge to OSHA’s authority to issue such a rule, arguing that a mandate like this one is a legislative act that only can be enacted by Congress.

The Fifth Circuit has ordered further briefing in the BST case, to be completed by Tuesday, November 9. Additionally, petitions for review of the ETS have been filed in at least three other circuits. Depending on the procedural interplay between these cases, the matters may be consolidated and referred to a lottery to be held by the Judicial Panel on Multidistrict Litigation, which would determine the circuit to ultimately hear the consolidated cases (subject to motions to transfer the cases). Epstein Becker Green will continue to monitor these challenges and other developments to assist employers with their COVID-19 compliance.

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