A federal appellate court on Saturday issued an administrative stay of enforcement of the emergency temporary standard that will require all employers with 100 or more employees to be fully vaccinated or test weekly for COVID-19. The stay—which appears to apply nationwide—was issued in response to a legal challenge to the ETS filed by several governors and private entities.

Under the standard—which was developed by the Occupational Safety and Health Administration at the direction of President Biden—employees of covered firms would have until Jan. 4 to receive the vaccine or be required to produce a negative test on “at least a weekly basis.”

Although the court’s stay is administrative in nature, to allow for the parties to brief the challengers’ emergency motion, the court stated that “the petitions give cause to believe there are grave statutory and constitutional issues with the [vaccine] Mandate . . . .”

Challenges to the standard have been brought in at least five federal appellate courts. A random draw will be held to determine which appellate court will hear the case. In light of the possibility that the ETS may be permanently enjoined, banks may wish to consider carefully the resources and effort they expend at this time to develop a program in anticipation of compliance with the ETS. For more information, contact ABA’s Tom Pinder or Jonathan Thessin.