Appeals Court Stays Federal Vaccine Mandate for Large Employers, Litigation Continues

Recall, last week, the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard relative to COVID-19 protections and precautions for employers with 100 or more employees, including a requirement for employers to verify that employees are fully vaccinated or complete regular weekly testing.

Shortly after the order was issued by OSHA, at least 27 states filed lawsuits challenging the mandate’s statutory and constitutional legality. On Saturday, the Fifth U.S. Circuit of Appeals in New Orleans granted an emergency stay of the OSHA rule which would have required employees to be vaccinated or test by January 4, 2022.

The Biden-Harris Administration late Monday filed a response to the court’s stay, arguing that maintaining the stay would “endanger many thousands of people” and expressing the Administration’s intent to defend the OSHA requirements. The Administration notes that OSHA has the “authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”

Given the number of challenges filed against the OSHA emergency temporary standard in multiple circuit courts, federal law requires that all cases be consolidated and heard by one federal appeals court chosen by lottery. The lottery is anticipated to occur as early as next week, and the case may end up before the U.S. Supreme Court.

The full Fifth Circuit stay order is available here. As the litigation continues its way through the court system, additional information and announcements are expected over the coming days and weeks.