Labor and Employment partner Lillian Chaves Moon discusses the Emergency Testing Standard (ETS) released by the U.S. Occupational Safety and Health Administration (OSHA) on November 4, 2021. The ETS, which requires covered employers to enforce a written vaccination policy and has other mandates regarding COVID-19, has been resisted by some employers, states, religious groups, and individual citizens, who filed lawsuits in federal courts across the country. The U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s enforcement of the ETS, placing employers in the position of having to decide whether to continue compliance efforts or take a wait-and-see approach.
“Employers are caught in the middle in this legal battlefront where the federal government is requiring mandatory vaccines or weekly testing and state governments are prohibiting it,” Moon wrote. “The best practice for employers and the least risky at this point is to move forward with trying to comply with the ETS. At the very least, employers should get their vaccine/weekly testing policies ready to be implemented.”