On November 12, 2021, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued a sweeping order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021.

The order found the ETS “imposes a financial burden upon [private employers] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” It further stated that the Occupational Safety and Health Act was not intended to allow the agency to make sweeping pronouncements on matters of public health.

The order criticized the ETS for not making an 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 [ETS] purports to address.” The order went on to question whether OSHA has shown a “grave danger” and that the ETS is “necessary.” The order concluded that petitioners are entitled to a stay because (1) they are likely to succeed on the merits and are suffering irreparable harm, (2) a stay pending adequate judicial review of the underlying motion for permanent injunction will not harm OSHA, and (3) the public interest favors a stay.

The order is silent as to whether it applies only in the Fifth Circuit or nationwide, but the petitioners did not limit their request for “an order staying the enforcement of the ETS” to any jurisdiction. The order grants that request and orders OSHA to “take no steps to implement or enforce the [ETS] until further court order,” without any geographic limitation on that restriction. The judges participating in the decision were Edith Jones (appointed by President Reagan), Kyle Duncan (appointed by President Trump), and Kurt Engelhardt (appointed by President Trump), with Judge Engelhardt authoring the panel’s opinion.

What Does This Mean for the ETS?

This order is the second response from the three-member panel of the Fifth Circuit to the petitioners’ motions for a “stay barring OSHA from enforcing the [ETS] during the pendency of judicial review.” The order reaffirms the court’s initial stay on November 6 and will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”

A “further court order” will eventually come from the federal judicial circuit that gets assigned the consolidated petitions for review of the ETS pending in 11 of the 12 United States circuit courts of appeals. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation will conduct a statutorily required random selection to decide which circuit will hear the consolidated cases from around the country.

What Is the Random Selection Among the Circuits all About?

When petitions for review of federal agency action are filed in multiple federal circuit courts, a federal statute requires the judicial panel on multidistrict litigation to select “by means of random selection” one court of appeals to hear all consolidated cases no matter where they were filed. Some have referred to this as a “lottery.”

The lottery will happen on November 16, 2021. The same statute also requires the judicial panel on multidistrict litigation to provide notice to the public and an opportunity for the submission of comments, but the statute does not provide a time period for comments. The circuit that hears the consolidated cases may end the stay or leave it in place. 

Who Ultimately Will Decide the Fate of the ETS?

Regardless of which federal circuit court “wins the lottery” and hears the consolidated petitions, employers should expect the Supreme Court of the United States to decide the ultimate fate of the ETS. The timing of when that will happen is unclear, but it will be at least weeks. While OSHA could petition the Supreme Court to review the Fifth Circuit’s order rather than waiting on the lottery and ensuing proceedings at the circuit court level, OSHA is more likely to wait for the lottery, another round of briefing, and the chance at what it considers a better outcome before doing so.

What Can Employers Do Now?

Whether the ETS ultimately will go into effect remains unknown. Planning for its implementation typically takes many weeks. As a result, employers should continue to monitor the legal developments and consider continuing preparations for following the requirements of the ETS.