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By:  Christina Harris Schwinn, Esq.

Effective as of November 16, 2021, OSHA announced that it will suspend implementation of its emergency temporary standard (ETS) on mandatory COVID vaccine/testing requirements that it issued on November 4, 2021.  This announcement follows the entry of an order by the federal Fifth Circuit Court of Appeals staying enforcement of OSHA’s ETS until such time that the legal arguments in the dispute can be fully heard before the court.  OSHA’s announcement can be read by clicking here: https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.  The opinion of the Fifth Circuit Court of Appeals can be read by clicking here: https://www.osha.gov/coronavirus/ets2.

Note, though, that the Fifth Circuit Court of Appeals will not be the ultimate decision maker in this multi-district litigation over OSHA’s ETS on COVID vaccines/testing. Rather, the case will be decided by the Sixth Circuit Court of Appeals as all the cases have been or will be consolidated in this court.  Stay tuned.  A decision could be issued before the Christmas holiday or sooner.  

Employers with more than 100 employees are now faced with a conundrum, i.e., whether to proceed with efforts to gear up to comply with the requirements of an ETS that may never be enforceable. Whether your business should gear up for compliance with the ETS as originally published and now stayed depends on your company’s culture and any unique exposure risks that exist in your company’s workplace.  For now, know that the December 5, 2021 and January 4, 2022 deadlines may be ignored as they do not apply. 

A note to the reader:  This article is intended to provide general information and is not intended to be a substitute for competent legal advice.  Competent legal counsel should be consulted if you have questions regarding compliance with the law. 

Questions regarding the content of this article may be e-mailed to Christina Harris Schwinn at christinaschwinn@paveselaw.com.  Ms. Schwinn is a partner and an experienced employment and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Fax: (239) 332-2243.  To view past articles written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com