Navigating OSHA ETS Uncertainty – What Happens Next

A federal court of appeals in Louisiana has temporarily stayed the U.S. Occupational Safety and Health Administration’s (OSHA’s) COVID-19 vaccine-or-test mandate for larger employers. We address what to expect next from the courts and how covered employers can protect their interests in the meantime.

As we first reported here, on November 5, 2021, OSHA published its long-awaited Emergency Temporary Standard (ETS) requiring private sector employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing for employees. The ETS sets a January 4, 2022 deadline for employees to be vaccinated or start testing and imposes a number of other requirements on employers—including adopting a mandatory vaccination policy and ascertaining the vaccination status of their workforces—by December 6, 2021

However, on November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a temporary stay of the ETS, citing potential “grave statutory and constitutional issues” presented by OSHA’s vaccine-or-test mandate. The stay can be construed to apply nationwide, creating uncertainty for employers gearing up to comply with the mandate.  

Whether the stay remains in effect while multiple legal challenges to the ETS are resolved will likely be decided in the upcoming weeks by another court of appeals randomly selected in a “lottery,” and, ultimately, by the Supreme Court. Our appellate and employment experts provide insight into the litigation and practical considerations for employers subject to the ETS in the article posted here, which is also available under Additional Resources. 

For more information about how the ETS applies to your workplace, please contact one of the authors or the Hogan Lovells lawyer with whom you regularly work.



Authored by Sean Marotta, George Ingham, and Amy Kett.

Sean Marotta
Washington, D.C.
George Ingham
Northern Virginia
Amy Kett
Senior Associate
Northern Virginia


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