UPDATE: On November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the ETS (including the Fifth Circuit ruling) before the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit has jurisdiction over federal appeals from the states of Kentucky, Michigan, Ohio and Tennessee. Of the 16 judges, 5 have been appointed by Democratic presidents and 11 have been appointed by Republican presidents.

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On Friday, November 12, the U.S. Court of Appeals for the Fifth Circuit issued an order staying enforcement and implementation of the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 “vaccine or test” emergency temporary standard (ETS).  The order was issued after an expedited briefing and in response to a petition filed by various employers, states, religious groups, and individual citizens seeking a temporary stay of the ETS pending judicial review to determine if a permanent injunction of the ETS should issue.  While the Fifth Circuit will not necessarily be the final word on the matter, the ruling signals that at least one federal appellate court has made a preliminary determination that the challenge to the ETS will likely succeed on the merits.  Pending review, the ruling effectively nullifies the ETS as OSHA is barred from both enforcing and implementing it.

What did the court say?

For an emergency regulation to be upheld, OSHA must show that the emergency regulation is necessary to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”  In a 22-page ruling, the court identified multiple reasons why the ETS should be permanently enjoined, including potential constitutional infirmity under the Commerce Clause and non-delegation doctrine.  Even assuming the ETS passes constitutional muster, the court went on to hold that COVID-19 was not the proper subject of emergency administrative action by OSHA. 

First, the court stated COVID-19 does not pose a grave danger because the virus—which is widely present and not particular to any workplace, and “non-life threatening to a vast majority of employees”—does not arise to such a toxic or physically harmful “substance” or “agent” contemplated by the OSH Act.  In concluding this, the Fifth Circuit highlighted OSHA’s prior statements made by the agency earlier in the pandemic that COVID-19 does not pose the kind of emergency that allows OSHA to take the extreme measure of an emergency temporary standard.

Second, with respect to necessity of the ETS, the Fifth Circuit took issue with the attenuated relationship between the ETS’ vaccination requirements for all employers with over 100 employees and the alleged hazard of COVID-19.  In particular, the court noted that the ETS was “the rare government pronouncement” that is both overinclusive and underinclusive. Specifically, the court found the ETS to be overbroad because it defines covered employers not by the actual threat of COVID-19 transmission posed by a specific workplace or to specific workers, but broadly encompasses all workplaces based on the number of employees alone. The court found the ETS to be equally underinclusive in that it fails to protect vulnerable workers simply because a given employer has less than 100 employees, even though these employees are exposed to the identical alleged “grave danger” posed by exposure to COVID-19.

Do I still need to comply with the December 6 and January 4 deadlines?

Likely no. Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action.  While the ETS is no longer in effect, the Fifth Circuit ruling has no impact on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Employers should continue to adhere to these requirements as applicable.  Notably, the vaccination deadline for covered federal contractors has been extended once again, and is now January 18, 2022.

What’s next?

Various groups have filed multiple petitions for review of the ETS in 11 of the 12 U.S. circuit courts of appeal. As a result, on or about November 16, 2021, all petitions for review will be consolidated before one of the 11 circuit courts of appeals via a lottery system. The circuit court chosen will ultimately determine whether to continue, alter, or lift the Fifth Circuit’s order of preliminary stay. Irrespective of whether the preliminary stay remains in effect, final resolution on whether the ETS was a proper exercise of OSHA’s authority may very well hinge upon a review by the United States Supreme Court.  

Littler will monitor these developments and provide periodic updates as new petitions and rulings develop.