OSHA’s vaccine or test mandate is stayed

On November 12, 2021, the U.S. Fifth Circuit Court of Appeals issued an order reaffirming its initial stay of the vaccination/testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). As we discussed in a prior article, the ETS, issued by OSHA on November 4, 2021, mandated COVID-19 vaccination or weekly testing of individuals working for employers with 100+ employees and required all covered employees to either be vaccinated or commence weekly testing by January 4, 2022. For now, the Fifth Circuit has enjoined OSHA from implementing or enforcing the ETS. The stay does not apply to the vaccine mandate issued by the Centers for Medicare and Medicaid Services (CMS), which is applicable to Medicare- and Medicaid-certified health care providers.

In support of its decision, the Fifth Circuit stated that OSHA failed to demonstrate that the ETS was necessary to protect employees from a grave danger. It also found potential constitutional problems with the ETS. Finally, it concluded that a stay is in the public interest, explaining that “[f]rom economic uncertainty to workplace strife, the mere specter of the [ETS] has contributed to untold economic upheaval in recent months.”   

In addition to the petitioners in the Fifth Circuit case, employers, states, religious groups and others filed petitions for review of the ETS in numerous other U.S. Circuit Courts of Appeals. On November 16, 2021, all of the petitions will be consolidated before one of the mentioned U.S. Circuit Courts of Appeals via a lottery system. That court will then hear the case and decide whether to continue, amend or lift the stay issued by the Fifth Circuit. That court is required by law to provide notice to the public and an opportunity for the submission of comments, but no time period is specified. In all likelihood, that court’s decision will be appealed to the U.S. Supreme Court. The timing for all of this is unclear, but it will be several weeks at least.

In the meantime, employers should prepare in the event the ETS eventually goes into effect and continue to monitor legal developments.