On November 12, 2021, a three-judge panel of the Fifth Circuit extended the temporary stay it had previously placed on the OSHA vax-or-test Emergency Temporary Standard, pending further judicial review of a request (one of many) to permanently enjoin OSHA from enforcing the ETS. Describing the ETS as a scheme under which employers would be “deputized to participate in OSHA’s regulatory scheme…by forcing unwilling employees to take their shots, take their tests, or hit the road[,]” the Court described a litany of statutory defects with the ETS and questioned its constitutionality.
While the details of the opinion make for interesting reading and provide a potential roadmap for a permanent injunction of the ETS, the question for employers remains the same: Should we still prepare for the ETS to be implemented? The answer to that question is the same as it was yesterday (and as we further explained in our November 9, 2021 blog post): likely so. Although the ETS is temporarily stayed, the temporary stay is precarious.
Continue Reading Fifth Circuit’s Stay of OSHA’s Vax-or-Test ETS Remains in Place – For Now