By
Stuart M. Gerson of Epstein Becker & Green
As we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.
On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most employers with at least 100 employees must, among other things, impose an indoor mask mandate for unvaccinated workers, and January 4, when covered employers must mandate COVID-19 vaccination or, in the alternative, vaccination or weekly testing, the Fifth Circuit panel’s temporary ban does not have immediate effect. However, the case has emboldened groups of businesses, religious groups, and at least half the states to mount a serious challenge to OSHA’s authority to issue such a rule, arguing that a mandate like this one is a legislative act that only can be enacted by Congress.
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