Last night, the OSHA regulation requiring vaccination or weekly testing for all employees of employers with 100 or more employees was blocked again by the Fifth Circuit Court of Appeals in New Orleans, which called the OSHA rules a “mandate” and added that it “grossly exceeds OSHA’s statutory authority.”

The court had previously stayed the order pending a range of legal challenges. The court ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.”

As we have noted on various seminars, the legality of the OSHA ETS likely will not be definitively decided until it is reviewed by the U.S. Supreme Court. The Justice Department, which was contesting the appeals court’s original stay, responded to the ruling in a statement: “Today’s decision is just the beginning of the process for review of this important OSHA standard. The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”

We will provide more information on the OSHA ETS as the litigations make their way through the courts. In the meantime, employers who might be covered by the ETS should reach out to counsel and discuss how/if/when to prepare for the potential implementation of this regulation.

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