Court of Appeals Temporarily Stays OSHA Vax and Test Standard

November 7, 2021

By: Thomas M. Cunningham

On Saturday afternoon, November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard (ETS) published on Friday by the Occupational Safety and Health Administration (OSHA). The ETS would require employers with 100 or more employees to implement policies mandating that employees be vaccinated against COVID-19 or provide documentation of a negative COVID-19 test at least every seven days. A more detailed description of the ETS provisions is here.


The order was issued in one of several lawsuits filed around the country challenging the legality of the ETS. The Fifth Circuit’s Order stated that the pending lawsuit “ give[s] cause to believe that there are grave statutory and constitutional issues” resulting from the mandate of the ETS. The Court stayed the ETS until further notice and ordered the parties to submit, on Monday and Tuesday of this week, briefing on whether the ETS should be permanently enjoined. The stay order is not a final ruling on the validity of the ETS, but only temporarily halts its implementation. Similar motions for stays and for injunctions are pending in several of the other actions, but as of this writing, none have been ruled upon.


These various legal challenges render the  future of the ETS uncertain. Both the final decision in the Fifth Circuit and how long the various lawsuits will take are unknown. For many employers, it may take weeks of planning and preparation to comply with the ETS’s deadlines. Iowa employers also must analyze how to comply with the ETS (if applicable) and how the ETS relates to recent laws enacted in Iowa concerning vaccine exemptions, proof of vaccination, and masking. Accordingly, employers may want to continue preparing for the ETS while litigation continues.


Nyemaster Goode’s Labor & Employment Department will continue to monitor and report on legal developments with respect to the COVID-19 situation and will post updates on our web site under the “News & Insights” tab.