On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccines or require weekly testing and face coverings.
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November 2021's Converge Newsletter
Red Light, Green Light, Red Light: Considerations For Employers While Legal Challenges To The OSHA Emergency Temporary Standard Go Through the Courts
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November 22, 2021 via Foley
On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccines or require weekly testing and face coverings. On November 6, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) temporarily "stayed" (meaning that it suspended enforcement of) the ETS. On November 12, 2021, the Fifth Circuit ordered a continuation of its stay of the ETS, directing OSHA to take "no steps to implement or enforce the Mandate until further Court Order." Shortly thereafter, OSHA pronounced that while it "remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

As expected, many individuals, organizations, and states filed legal challenges to the ETS, which triggered an obscure process known as the "Multi-District Litigation lottery." Where the same law is subject to many legal challenges in several different circuit courts, a "lottery" is held to determine which appellate court will oversee the consolidated appeals. On November 17, 2021, the U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) "won" the lottery, meaning that it will decide the merits of the myriad legal challenges to the ETS. The immediate question is whether the Sixth Circuit will keep in place the Fifth Circuit’s stay on the ETS while the appeal plays out, which appears to be the most likely outcome.

All of this legal and procedural shuffling has left many employers wondering—what should we do now?
Foley | Foley & Lardner's ConvergeBlog
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