The Labor & Employment Blog provides employers with breaking news, insights, and legal analysis on the wide range of labor and employment issues facing employers and businesses. While the Blog provides a general summary of regulation updates, it is not intended to be, and should not be relied upon as, legal advice. The labor & employment attorneys at Chamberlain Hrdlicka stand ready to counsel employers on the issues they face.
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Shortly after Chamberlain Hrdlicka’s update concerning the vaccine-or-test Emergency Temporary Standard (“ETS”) that the Occupational Safety and Health Administration (“OSHA”) announced for employers with 100 or more employees, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. The three-judge panel noted the legal filings “give cause to believe there are grave statutory and constitutional issues” with the ETS. The Fifth Circuit’s stay is in place while the Court considers a motion to permanently stop the ETS from taking effect. The government and the challengers are expected to file additional legal briefing this week.
At this time, other challenges to the ETS have been filed in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuit Courts of Appeals. Because challenges were filed in more than one circuit, the judicial panel on multidistrict litigation will conduct a multi-circuit lottery around November 16, 2021, and determine which single circuit will consolidate all challenges and resolve the petitions for review. Whichever circuit wins the lottery may revisit any orders the Fifth Circuit has entered. Most expect the challenges to OSHA’s ETS will reach the United States Supreme Court.
The impact of the stay on the current ETS deadlines is unclear but, given the regulation imposes a significant burden on the employer should it survive court review, employers should begin considering how they will comply if the stay is lifted. Chamberlain’s Labor and Employment Group continues to monitor the challenges to the ETS and can assist employers as they navigate these COVID-19 issues.
Chamberlain Hrdlicka’s Labor & Employment Practice will continue to monitor COVID-19 regulations, and other labor law developments, and is available to answer any questions you may have regarding this new regulation.