Court Temporarily Stays OSHA Vaccine/Testing Requirement

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released the emergency temporary standard (ETS) requiring employers with more than 100 employees to implement a vaccine mandate or testing requirement by January 4, 2022. Cities can find more information on the ETS here.

As soon as the ETS was issued, multiple entities filed petitions in several courts, including one filed by Kentucky Attorney General Daniel Cameron. On November 6, the 5th Circuit U.S. Court of Appeals in New Orleans temporarily stayed the ETS over the petition’s language regarding “grave statutory and constitutional issues.” The 5th Circuit Court ordered President Biden’s administration to respond to the injunction by 5:00 p.m. Monday, and the Court is expected to make a determination swiftly.

The Department of Labor (DOL) responded stating, “The Occupational Safety and Health Act explicitly gives OSHA 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.” The response also stated that federal authorities “are fully prepared to defend this standard in court.”

KLC is monitoring all developments and recommends that local governments with more than 100 employees continue to prepare to implement the ETS in the event that the injunction is lifted. Contact Andrea Shindlebower Main, KLC personnel services manager, or any KLC Municipal Law Department member for questions or more information.