On Friday, November 12, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit issued a strongly worded decision granting a motion to prevent the Occupational Safety and Health Administration (OSHA) from implementing or enforcing the Emergency Temporary Standard (ETS) that went into effect on November 5, 2021. Among other things, the ETS mandates that employers with 100 or more employees require that their workers be fully vaccinated against COVID-19 or submit to precautions like regular testing and using face coverings. However, the Fifth Circuit ordered OSHA to take no action to implement or enforce the ETS until further court order.

In a 22-page decision, the panel of three Circuit Judges reaffirmed an initial stay, holding that the ETS “grossly exceeds OSHA’s statutory authority” and concluding that the petitioners’ challenges to the ETS are likely to succeed on the merits. In so holding, the Fifth Circuit questioned whether the COVID-19 pandemic constitutes the type of emergency meant to be remedied by an ETS, and determined that COVID-19 does not pose the kind of “grave danger” contemplated by the Occupational Safety and Health Act to support the need for an ETS. The court also characterized the ETS as both “staggeringly overbroad” and “underinclusive”—an effort to apply a “one-size-fits-all Mandate” to a complex problem.

Over the weekend, OSHA posted a notice on its website, stating:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

After initial court action blocked the ETS, attorneys for the Biden administration asked the Fifth Circuit, which is based in New Orleans and covers the states of Louisiana, Mississippi, and Texas, to await the status of similar lawsuits filed around the country. Court watchers expected the Biden administration to ask the Judicial Panel on Multidistrict Litigation to consolidate this and similar cases into a single case to be heard by a single Circuit, based on a lottery drawing to be held on November 16, 2021. The Fifth Circuit’s decision to reaffirm its initial stay raises new questions as to the next procedural steps. The Biden administration, for instance, may seek immediate review of the Fifth Circuit decision by the U.S. Supreme Court.

In the meantime, as a result of the Fifth Circuit decision, OSHA is barred from taking any actions to implement or enforce the ETS. Employers wondering what to do next should recall that the question before the Fifth Circuit is whether the law authorizes a federal agency to issue such a broad rule. However, in other litigation challenging the authority of states and private employers to require health and safety measures—including mandatory vaccination against COVID-19—courts have almost uniformly upheld such policies. While enforcement of the OSHA ETS remains on hold until further notice, our OSHA compliance attorneys recommend that private employers should consider continuing their preparations to comply with the ETS deadlines, and must, regardless of the outcome of the litigation regarding the ETS, continue to effect workplace policies that comply with applicable state and local requirements.

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