On Friday, November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued a mandate-or-test Emergency Temporary Standard (ETS) that will take effect in January 2022. The ETS will mandate that most employers with 100 or more employees either (1) require vaccination (with exceptions for reasonable accommodation for medical and/or religious reasons) or (2) require that any employees who are not vaccinated and who do not qualify for reasonable accommodation submit to weekly COVID tests and wear face coverings. Republican-led states and private businesses petitioned the Fifth Circuit Court of Appeals to permanently block the ETS from going into effect and the Court granted a temporary stay of the ETS. In doing so, the Fifth Circuit panel stated that the petitioners in the case gave “cause to believe there are grave statutory and constitutional issues with the mandate.”

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