The saga of the Occupational Safety and Health Administration’s (OSHA) newly announced COVID-19 Emergency Temporary Standard (ETS) continues. As you know, the ETS requires employers with 100 or more employees to mandate vaccines or weekly testing (with limited exceptions). OSHA has since announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The announcement results from the Fifth Circuit’s  22-page opinion continuing its stay of the ETS. The Fifth Circuit’s order foreshadows the legal challenges to come.

The Fifth Circuit’s Order

In the order, the Fifth Circuit accuses the current administration of shoe-horning the desire for a federal vaccine mandate into the best, but ill-fitting, vehicle the administration could find – an OSHA ETS. The court points out that OSHA’s authority to establish emergency temporary standards is “an extraordinary power that is to be delicately exercised” and criticizes the ETS vaccine rule as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces.” The opinion calls the ETS the

rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

The Fifth Circuit questions whether OSHA has adequately shown a “grave danger” warranting the issuance of an ETS and states that it is “dubious” as to whether the rule will pass “constitutional muster.”

While the stay is welcome news to many employers, keep in mind that the Fifth Circuit is only one of 12 federal circuits and the ultimate decision may not line up with this opinion.

What happens next?

With OSHA standing down for now and the Fifth Circuit’s stay firmly in place – and other challenges pending in 11 of 12 federal circuit courts of appeal – the cases will be consolidated and assigned to one circuit court, chosen randomly via lottery. As we noted in a previous post, federal law requires this lottery process when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” The lottery is set for November 16, 2021. It’s not a Powerball drawing but it is significant.

What should Employers Covered by the OSHA ETS do?

While the ETS’ future is up in the air for now, this does not mean employers should halt plans for compliance. As noted above, the Fifth Circuit’s opinion may not be indicative of how another circuit may ultimately rule. The announcement notes that “OSHA remains confident in its authority to protect workers in emergencies,” so we should not assume that OSHA is giving up on the ETS. Cautious employers may want to move forward with plans for compliance while also keeping a close eye on whatever circuit is chosen by the lottery.

CMS and Federal Contractor Mandate Not Paused

Employers who are federal contractors or health care providers should not make decisions based on OSHA’s announcement and the Fifth Circuit’s order. Those employers are subject to different (although similar) federal mandates – the Federal Contractor Mandate and the CMS Medicare Omnibus Staff Vaccine Mandate Interim Final Rule.  Both of those governmental mandates are currently being challenged, but at the moment have not been halted by any federal court action.