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UPDATE: Fifth Circuit Continues Stay of OSHA ETS for Large Employers

November 15, 2021

By: Donald D. Berner and Morgan E. Geffre

Foulston has produced a series of issue alerts as we continue to monitor the evolving COVID-19 situation and provide additional guidance. Please find all updates and our latest resources available here

On Saturday, November 14, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a ruling to continue its temporary stay blocking the implementation of the Occupational Safety and Health Administration’s Emergency Temporary Standard (“OSHA ETS”), which directs certain private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing.

A lawsuit challenging the OSHA ETS has been filed in each of the different circuits. On November 16, 2021, the Judicial Panel for Multidistrict Litigation will meet to assign the consolidated cases to one of those federal appeals courts. We will continue to monitor the case. In the meantime, employers may need to continue making preparations to comply with the OSHA ETS by the December 5, 2021, deadline, in the event the OSHA ETS is ultimately upheld. It is important to remember that the Court’s order applies only to the OSHA ETS. It does not apply to the separate vaccine mandates imposed on federal contractors and Medicare and Medicaid certified providers, which require that covered employees be vaccinated (or accommodated for medical or religious reasons) by January 4, 2022. Each of those mandates are also facing legal challenges, though the courts have yet to delay implementation.

An overview of the OSHA ETS requiring large employers to mandate vaccines or provide weekly testing is available here, and the alert regarding the initial temporary stay of the OSHA ETS is available here.

For More Information

If you have questions or want more information regarding the OSHA ETS temporary standard for large employers, contact your legal counsel. If you do not have regular counsel for such matters, Foulston Siefkin LLP would welcome the opportunity to work with you to meet your specific business needs. For more information, contact Don Berner at 316.291.9738 or or Morgan Geffre at 316.291.9577 or For more information on the firm, please visit our website at

Established in 1919, Foulston is the largest Kansas-based law firm. With offices in Wichita, Kansas City, and Topeka, Foulston provides a full range of legal services to clients in the areas of administrative & regulatory; antitrust & trade regulation; appellate law; banking & financial services; business & corporate; construction; creditors’ rights & bankruptcy; e-commerce; education & public entity; elder law; emerging small business; employee benefits & ERISA; employment & labor; energy; environmental; ERISA litigation; estate planning & probate; family business enterprise; franchise & distribution; government investigations & white collar defense; governmental liability; government relations & public policy; healthcare; immigration; insurance regulatory; intellectual property; litigation & disputes; long-term care; mediation/dispute resolution; mergers & acquisitions; Native American law; oil, gas & minerals; OSHA; privacy & data security; private equity & venture capital; product liability; professional malpractice; real estate; securities & corporate finance; supply chain management; tax exempt organizations; taxation; trade secret & noncompete litigation; water rights; and wind & solar energy.


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This update has been prepared by Foulston Siefkin LLP for informational purposes only. It is not a legal opinion; it does not provide legal advice for any purpose; and it neither creates nor constitutes evidence of an attorney-client relationship.