On November 6, 2021, in a per curiam opinion, a Fifth Circuit Court of Appeal panel temporarily enjoined the new Occupational Health and Safety Administration’s vaccine Emergency Temporary Standard (“ETS”) for employers with 100 or more employees. A copy of the opinion is available here. Our prior blog post on the ETS is available here.
The Fifth Circuit did not provide further analysis or comment, and did not specify whether the injunction was meant to be nationwide in scope. Notably, this ruling does not mean employers cannot elect to voluntarily impose mandatory vaccine policies, nor does the ruling mean that those policies are illegal.
The stay may be exceptionally short lived because next week one federal circuit will be selected via lottery to handle the consolidated case on this issue (4 challenges have been filed thus far), and the selected circuit could reverse the stay. Challengers to the ETS have a 10-day window to file their petitions so they can be included in the lottery, which will determine which circuit court gets possession of the consolidated case. Also, the Fifth Circuit in its opinion ordered expedited additional briefing from the Biden Administration on Monday and the petitioners on Tuesday, but it is unclear when or if the Fifth Circuit will take additional action. Employers should consult experienced legal counsel for the most up-to-date advice on vaccine policies and the status of the ETS.