This weekend a federal court in Louisiana issued a temporary stay effectively stopping enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring vaccination or weekly testing for all employers with 100 or more employees except for certain healthcare facilities and federal contractors. Following the announcement of the ETS by OSHA last week, at least 27 states filed lawsuits to challenge the rules. The Fifth Circuit Court of Appeals sitting in New Orleans issued the stay on the basis that there are “grave statutory and constitutional issues” raised by the ETS. Additional briefing is required by the parties this week. 

As the stay is temporary, covered employers are advised to continue to prepare for the possibility of mandatory vaccines and weekly testing. The deadline to comply with non-testing requirements, including establishing a mandatory vaccination policy, determining employee vaccination status, and issuing mask requirements, is December 6, 2021. The ETS requires that all covered employees be fully vaccinated by January 4, 2022.  Although an employer may be covered by the ETS, certain of its employees are not covered (1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) who work from home; or (3) who work exclusively outdoors.