On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued an order temporarily enjoining OSHA from implementing its Emergency Temporary Standard (ETS) requiring large employers to adopt vaccine mandates, or weekly testing protocols.  The injunction was issued in a lawsuit brought by several companies arguing that the mandate exceeds OSHA’s statutory rule making authority.

What does this mean for employers?

The Fifth Circuit will move quickly to decide whether to make the injunction permanent, or allow the mandate to go into effect as planned.  Even if the Fifth Circuit makes the injunction permanent, the Virginia Department of Labor and Industry (DOLI) may still issue its anticipated Virginia Occupational Safety and Health (VOSH) rule that would apply this same large employer mandate to private and public employers in the Commonwealth.  While employers may certainly decide to wait for more legal clarity before implementing workplace vaccination requirements, continued planning now will be essential to meeting compliance obligations and deadlines should a mandate go into effect January 4, 2022.