On November 6, shortly after the Department of Labor (DOL) published its new OSHA ETS requirements, the United States Court of Appeals for the Fifth Circuit issued an order staying the new COVID-19 ETS for businesses with at least 100 employees.

The Fifth Circuit issued its ruling after several lawsuits were filed throughout the country challenging the ETS. In suspending enforcement of the new ETS, the Fifth Circuit stated that the new policy raised grave statutory and constitutional issues.

In connection with the new OSHA ETS:

  • Businesses with 100 or more employees have until January 4, 2022 to require vaccinations or begin weekly testing of employees.
  • All unvaccinated employees must begin wearing masks by December 5 and provide a negative COVID-19 test beginning January 4 on a weekly basis.
  • Employers must pay employees for the time it takes them to get vaccinated and also to recover from any side effects that prevent them from working.
  • Businesses are not required to pay for or provide COVID tests unless required to do so by state or local laws, or union contracts.

The Fifth Circuit directed the federal government to submit its position by late in the afternoon on November 8 so that the court can decide whether the temporary suspension of the ETS should become permanent. For its part, the DOL announced that it believes the ETS is constitutional and well within OSHA’s authority to ensure safety in the workplace.

Marc R. Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.