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Fifth Circuit Temporarily Halting Enforcement Mandating Vaccine

access_time Posted on: November 17th, 2021

The Fifth Circuit has extended its November 6, 2021 order temporarily halting enforcement of the OSHA Emergency Temporary Standard (ETS) mandating vaccination for employers with 100 or more employees. 

To support its decision, the court cited constitutional concerns, as well as its finding that the ETS is both overinclusive – to the extent it applies to all workplaces in all industries – and underinclusive – based on its failure to require the vaccine for employers with fewer than 100 employees. 

In response, OSHA stated that while it “remains confident in its authority to protect workers,” it has halted all activities related to implementation and enforcement of the ETS, pending further developments in the litigation.

As of today, challenges have been filed in every federal circuit court but the 10th Circuit.  The next step will be the consolidation of those cases and assignment to one of the circuits where a petition for review is pending.  That lottery is expected to take place this week, most likely tomorrow.  If assigned to the Fifth Circuit, we can predict the outcome – but otherwise, the stay may be lifted and the ETS may move forward.  Regardless, the Supreme Court is almost certain to have the last word.

In the meantime, it is advisable for large employers to continue to monitor developments and take reasonable steps to be prepared in the event the ETS survives, as the first effective date for implementation of parts of the ETS is December 5, 2021.

Read Christine’s previous article HERE. Further updates will be posted on this page.

We will continue to monitor and update you on developments as they occur.

In the meantime, please contact Christine Nentwig, Chair of CGA Law Firm’s Employment Law Group with any questions.  cnentwig@cgalaw.com (717) 718-3956.

Christine Nentwig, Esquire

Chair, Labor and Employment Practice Group

Christine has more than 25 years of experience providing labor and employment guidance to clients in both the private and public sectors. She earned her JD from the University of Maryland School of Law and her MBA from Northwestern University’s Kellogg School of Management – Christine is also an adjunct professor at York College of Pennsylvania, teaching Employment Law and Labor Relations.

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