Over the past several weeks, vaccine mandates have been released by the Occupational Safety and Health Administration ("OSHA"), Centers for Medicare and Medicaid Services ("CMS"), and the White House. Each of these mandates has subsequently been challenged in court. This Alert provides an update on where enforcement of each mandate currently stands.
On November 4, 2021, OSHA released its COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS"). See OSHA ETS Client Alert. The ETS applies broadly to all employers with a total of 100 or more employees and was set to require most employees to either be fully vaccinated or submit to weekly testing by January 4, 2022.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay, halting implementation of the ETS pending consideration of a challenge to its enforceability. The Fifth Circuit extended the stay on November 12, 2021. In ordering a continuation of the stay, the Fifth Circuit directed OSHA to take "no steps to implement or enforce the Mandate until further Court Order."
Additionally, as a result of multiple pending challenges to the ETS, on November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected to handle a group of consolidated cases challenging the ETS, including the case initially ruled on by the Fifth Circuit. The briefing schedule for the consolidated cases indicates the Sixth Circuit will not rule on the...
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