Note: On Nov. 12, 2021, as this piece was going to print, the U.S. Court of Appeals for the Fifth Circuit affirmed its November 6 order staying enforcement of the Occupational Safety and Health Administration's COVID-19 Vaccination and Testing Emergency Temporary Standard. The court concluded that the promulgation and enforcement of the emergency temporary standard exceeded the Agency's statutory authority under the Occupational Safety and Health Act. The Fifth Circuit ordered that the emergency temporary standard remain "STAYED pending adequate judicial review of the petitioners' underlying motions for a permanent injunction" and "FURTHER ORDERED that OSHA take no steps to implement or enforce [it] until further court order."[*]

On Nov. 5, 2021, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA") issued an emergency temporary standard (the "November ETS") requiring employers to "develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination."[1]

On November 6, the U.S. Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of the November ETS pending further action by the court.[2] The court granted the motion "[b]ecause the petitions give cause to believe there are grave statutory and constitutional issues with the [ETS] … ."[3] The grave statutory issues alone are likely sufficient for the Court of Appeals to permanently stay enforcement of the ETS, as OSHA has not met the statutory requirements for its promulgation; nor is it clear that the Agency has authority to mandate vaccinations and testing.