Law Alert: OSHA ETS on Vaccines and Testing Temporarily Stayed
November 7, 2021
Yesterday, the United States Court of Appeals for the Fifth Circuit issued a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on Vaccines and Testing, which applies to employers with more than 100 employees. The panel cited “grave statutory and constitutional concerns” in its brief order. The court called for accelerated briefing on why a permanent injunction should not be granted, with the government’s brief due Monday.
There are multiple challenges in other federal courts of appeals in which the challengers have sought a temporary injunction. Shortly, it is expected that the Judicial Panel on Multidistrict Litigation will randomly select a federal court of appeals in which to consolidate the cases. It is possible that court could lift stays previously issued, like the one from the Fifth Circuit. We will be following fast-developing judicial developments along with potential official guidance that a combination of exemptions in the ETS work to potentially exempt many truck drivers. After the rule was released, the Secretary of Labor indicated his view that most truck drivers would not be covered by the ETS.