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11.18.21 COVID-19 Bulletin: OSHA’s Vax/Test Mandate Paused Amid Legal Limbo

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Josh Veronica

November 18, 2021

Citing ongoing litigation, the Occupational Safety and Health Administration (OSHA) announced it is pausing the implementation and enforcement of its COVID-19 Vaccine and Testing Emergency Temporary Standard. 

Per OSHA’s website“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (‘ETS’). The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” 

However, this issue likely does not end here. This decision is expected to be appealed and may even make its way to the Supreme Court. Employers should remain prepared to implement the rule, because it may take effect again if a court overturns the Fifth Circuit’s decision.  

If the courts could reaffirm this rule, OSHA could enforce it on its January 4th effective date. At this time, though, the federal government is not implementing nor enforcing the vaccine-or-test mandate.  

The BNP will continue to keep you informed of judicial updates related to this rule.  

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