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ARTICLE · 18 NOVEMBER 2021

Fifth Circuit Issues Order Further Staying ETS – What's Next?

Armstrong Teasdale LLP
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The federal Occupational Safety and Health Administration (OSHA) announced on Nov. 4, 2021

United StatesEmployment and HR
Martha J. Zackin
Martha J. Zackin
Julie E. O'Keefe
Julie E. O'Keefe
Travis Kearbey
Travis Kearbey

The federal Occupational Safety and Health Administration (OSHA) announced on Nov. 4, 2021, that it was implementing a long-awaited emergency temporary standard (ETS) mandating large employers to either: require its employees to be vaccinated against COVID-19; or allow employees to choose between vaccination and weekly testing and mandatory masking. OSHA published the ETS in the Federal Register on Nov. 5. The same day, challengers filed suit in the Fifth Circuit Court of Appeals, as well as in other Courts of Appeals. On Nov. 6, 2021, the Fifth Circuit temporarily stayed the ETS, finding "cause to believe there are grave constitutional statutory and constitutional issues" with the mandate. Following an expedited briefing schedule, on Nov. 12, 2021, the Fifth Circuit issued a sweeping order (Order), staying enforcement and implementation of the ETS. 

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