Fifth Circuit Court of Appeals Grants Stay Blocking OSHA ETS

On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit Court granted a motion to stay the Occupational Safety & Health Administration's (OSHA) Emergency Temporary Standard (ETS) for employers with 100 or more employees. (A total of 26 states filed suit in appeals courts challenging the ETS.) A temporary stay was first granted on Nov. 6; on Nov. 8, the Biden administration filed its responsive brief asking the court to lift the stay, and in a press briefing that day, said businesses should move forward with vaccine and testing requirements. As of Nov. 12, however, the 5th Circuit ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." As a result, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation; the issue is likely to proceed to the U.S. Supreme Court.