On Friday, November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit extended its initial stay regarding OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The Fifth Circuit made clear how it feels about the ETS, explaining that the OSH Act was not "intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways." Further, the Court opined that "rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers' varying degrees of susceptibility to the supposedly 'grave danger' the Mandate purports to address." Having taken the first substantive cut at these issues, the Fifth Circuit's definitive language could carry significant influence moving forward.
The Court's extension of its stay means OSHA still cannot enforce the ETS. Because similar petitions challenging the ETS's legality are pending in nearly all U.S. Courts of Appeals, we expect the Judicial Panel on Multidistrict Litigation to hold a lottery on Tuesday, November 16, 2021, that will determine which Circuit wins the authority to rule more permanently on whether the ETS is legally viable; it may well be that the Supreme Court has final say. Wherever the matter lands, subsequent courts will have to consider the Fifth Circuit's decision concluding that OSHA cannot meet its statutory burden. But the designated Court of Appeals can overturn the Fifth Circuit's stay, so, in practical sense, we remain somewhat in limbo until the lottery occurs.
OSHA's ETS resource page acknowledges the Fifth Circuit's decision to extend its stay, but expresses "confiden[ce] in its authority to protect workers in emergencies." Based on the directives in the Court's opinion, "OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation." Until a court finally determines whether OSHA's ETS was lawfully promulgated, we continue to counsel covered employers to pursue compliance with its December 6, 2021 and January 4, 2022 deadlines. To assist, we have prepared an ETS Checklist, as well as a Chart comparing the ETS, the Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, and the Centers for Medicare & Medicaid Services, Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination Regulation. These materials are available for download under the "Additional Resources" section of this page.
The complexities and nuances surrounding ETS compliance, and the procedural posture of the legal challenges to the standard, warrant comprehensive consideration. Please reach out with any additional questions, as we stand ready to support you.
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