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Appellate Court Halts OSHA’s Emergency Temporary Standard Requiring Mandatory COVID-19 Vaccination or Testing

November 15, 2021

Update: On November 16, 2021, the various lawsuits challenging the ETS were consolidated and transferred to the Sixth Circuit Court of Appeals in Cincinnati, Ohio. While the U.S. Court of Appeals for the Fifth Circuit no longer has jurisdiction over any ETS-related challenges, its order staying enforcement of that Rule remains in effect until the Sixth Circuit decides to take action, if at all, to modify the Fifth Circuit ruling.

Immediately after OSHA published its Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing for private sector workers, various individuals, covered employers, states and other groups challenged its validity in federal appeals courts across the country. On November 6, 2021, the Fifth Circuit Court of Appeals, which has jurisdiction over federal judicial districts in Louisiana, Mississippi and Texas, issued a short per curiam opinion staying the ETS pending briefing and expedited judicial review, finding "cause to believe that there are grave statutory and constitutional issues with the mandate."

On November 12, the Fifth Circuit reaffirmed and extended its initial stay, holding that the applicable factors favored a stay of OSHA's ETS:

Accordingly, the Fifth Circuit stayed the ETS pending further judicial review of the petitioners' motions for a permanent injunction and ordered that OSHA take no steps to implement or enforce the ETS until further court order.

While the Fifth Circuit's stay of the ETS has nationwide and immediate effect, this is not a final ruling. As petitions to challenge the ETS have been brought thus far in every federal appeals court except the Tenth Circuit, the Judicial Panel on Multidistrict Litigation will randomly select one court of appeals and consolidate the petitions for review in that court. If a different federal circuit is selected through this proceeding, the Fifth Circuit's decision to stay the ETS may be "modified, revoked, or extended" by that selected court.  Additionally, any appellate rulings are likely to be appealed to the Supreme Court.

If you have any questions about these new developments or how they may impact your workplace, please contact the authors of this alert or your Miller Canfield attorney.

This information is based on the facts and guidance available at the time of publication and may change as the agency receives comments and/or updates its guidance.

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