Fifth Circuit Stays OSHA's November 5th Emergency Temporary Standard on COVID-19 Vaccination and Testing

On Saturday, the United States Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of OSHA’s November 5, 2021 Emergency Temporary Standard (“ETS”). This motion was filed by several businesses, advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah. Upon filing the motion, Texas Attorney General Ken Paxton issued a statement asserting that the ETS goes outside of OSHA’s “limited power and specific responsibilities” and is “flatly unconstitutional.”

Citing “grave statutory and constitutional issues” with the ETS, the Fifth Circuit stayed the enforcement of the ETS pending further action of the Court. 

See: https://www.ca5.uscourts.gov/opinions/unpub/21/21-60845.0.pdf

The Government has until today (Monday, November 8) at 5:00 pm to respond. The Petitioners have until 5:00 pm tomorrow (Tuesday, November 9) to file their reply. 

We will continue to keep you updated as this develops.

For our prior alerts related to this issue, please see below.

• September 13, 2021: U.S. Department of Labor Issues Vaccine Mandate – What’s Next for Employers? (to view our webinar expanding on this alert, please contact us.)
• October 5, 2021: Vaccination Mandates for Federal Contractors and Subcontractors
• October 15, 2021: Legal Implications of Texas Governor Greg Abbott’s Ban on Vaccine Mandates
• November 5, 2021: OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard