The 5th Circuit and OSHA Put the Brakes on OSHA’s Emergency Temporary Standard

No sooner did OSHA issue its Emergency Temporary Standard (ETS) on November 4, 2021, to implement mandatory vaccination or testing programs for large employers, it was challenged in 11 of the 12 United States Courts of Appeals as an unconstitutional overreach by the agency. Last Friday the 5th Circuit Court of Appeals (covering most of Louisiana, Mississippi and Texas) confirmed its November 6th temporary stay of the ETS, stating that the rule “grossly exceeds OSHA’s” statutory authority.” The Court also held that the COVID-19 virus was not a proper subject of emergency administrative action by OSHA. Under the court’s ruling, the stay will remain in place until a further order that will come from the appeals court assigned by the U S. Judicial Panel on Multidistrict Litigation to hear the consolidated Circuit Court petitions.

In the face of these legal challenges, OSHA suspended the implementation and enforcement of the ETS pending the ongoing litigation. However, OSHA stated that it remains confident that the ETS will ultimately be withheld.

What should large employers covered by the ETS do? In light of the 5th Circuit ruling, employers of 100 or more no longer need meet the looming December 6th and January 4th deadlines imposed by OSHA to implement vaccination verification, weekly testing, and other requirements of the ETS.

However, employers must continue to closely monitor the situation as the legal challenges wind through the courts. The 12 petitions in the Circuit Courts are expected to be consolidated before a single Circuit Court on November 16th. That court will then determine whether to vacate, modify or extend the 5th Circuit’s preliminary stay of the ETS. It is very likely that any rulings in the consolidated action will ultimately be reviewed by the United States Supreme Court.

While employers can breathe a sigh of relief, the reprieve may be short-lived and employers should nevertheless familiarize themselves with the ETS requirements so they are prepared to act swiftly if the ETS is upheld or modified. Moreover, employers should keep in mind that mandatory vaccinations required by the Centers for Medicare and Medicaid Services’ interim final rule for healthcare workers and President Biden’s Executive Order 14042 requiring mandatory vaccinations for certain federal contractors were not impacted by the 5th Circuit’s rulings and remain in effect.