On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying the implementation and enforcement of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”).  This order affirmed the Fifth Circuit’s original November 6, 2021 order, which granted petitioners’ emergency motion to stay the ETS pending briefing and expedited judicial review.  After considering the briefing submitted by the parties, the Fifth Circuit’s November 12, 2021 order leaves the emergency stay in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”

As we reported, the ETS requires employers with a total of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or choose to subject unvaccinated employees to weekly COVID-19 testing.

The Fifth Circuit’s Order and Future Legal Actions

For the ETS to be upheld, OSHA must show that the ETS is necessary to protect employees from a “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”  The Fifth Circuit disagreed that the ETS is necessary to protect employees.  In its twenty-two (22) page ruling, the Fifth Circuit ruled that: (1) the petitioners are likely to succeed in arguing that the ETS is unconstitutional and/or exceeds OSHA’s statutory authority because the ETS is “flawed” and “overbroad”; (2) the petitioners would be irreparably harmed absent a stay; (3) a stay will not substantially injure OSHA; and (4) a stay of the ETS is “firmly in the public interest.”  Pending further court action, the Fifth Circuit barred OSHA from taking steps to implement or enforce the ETS.

In response to the Fifth Circuit’s decision, OSHA announced:

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.

The Fifth Circuit is arguably the most conservative federal circuit court of appeal and will likely not be the last court to hear the issue.  In fact, similar lawsuits have been filed in eleven (11) out of the twelve (12) federal circuit courts of appeal.  On or around November 16, 2021, all petitions for review of the ETS will be consolidated by the U.S. Judicial Panel on Multidistrict Litigation via a lottery system.  The federal circuit court of appeal chosen will ultimately decide whether to continue, modify, or lift the Fifth Circuit’s order. After that decision is made, it is expected that the final resolution of the ETS’ legality will be heard by the United States Supreme Court.

What Does this Mean for Employers?

As noted above, OSHA may not take any steps to implement or enforce the ETS under the Fifth Circuit’s November 12, 2021 order.  Given this decision and OSHA’s subsequent announcement confirming that the agency is suspending any action to implement and enforce the ETS, it is likely that employers will not need to comply with the December 6, 2021 and January 4, 2022 deadlines set forth in the ETS.  Indeed, the aforementioned deadlines are no longer in effect pending further court action.  While it is still possible that the ETS will be upheld by the courts and, therefore, go into effect in the future, it is unlikely for that final decision to be made prior to the upcoming deadlines.  If the ETS passes muster in the courts, OSHA will likely issue updated guidance regarding the deadlines for compliance.

Notably, however, the Fifth Circuit’s ruling does not affect President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors and the Centers for Medicare and Medicaid Services’ (“CMS”) interim final rule for healthcare workers, which still apply to certain employers.

Employers should continue to stay up-to-date with any legal developments and speak to counsel about what (if any) actions should be taken to prepare for the possible implementation of the ETS.