OSHA Ordered to Cease Implementation of Vaccination and Testing ETS Pending Further Court Order

By Charles P. Keller

On Monday, November 8, 2021, Snell & Wilmer published a Legal Alert explaining that, on November 6, 2021, the Fifth Circuit Court of Appeals in New Orleans granted a stay and suspended the federal OSHA emergency temporary standards (ETS) requiring employers to mandate COVID-19 vaccinations or requiring employees to submit to regular testing. On Friday, November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a 22-page decision affirming its November 6, 2021 stay.¹ This new stay remains in effect “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” The Fifth Circuit went on to state, “It is further ordered that OSHA take no steps to implement or enforce the Mandate until further court order.”

In issuing the further stay, the Court determined that a continued stay was appropriate because “the applicant had made a strong showing that it was likely to succeed on the merits.”  In supporting this decision, the Court noted that in the 50-year history of OSHA, the Agency had issued just ten ETSs. Of the ten issued ETSs, six were challenged in court.  Of those six, only one survived.  The Court went on to note that, “[e]xtraordinary power [was] delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.”

Upon evaluating the present COVID-19 Vaccination and Testing Emergency Temporary Standard, the Fifth Circuit found the ETS to be fatally flawed.  The Court found it to be overinclusive as well as underinclusive and “staggeringly overbroad.”  The Court went on to say “the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces…”  Furthermore, the Court stated, “OSHA’s attempt to shoehorn an airborne virus that is both widely present in society and non-life-threatening to a vast majority of employees” is an overreach. Finally, the Court stated that the ETS appears to be a “poorly-suited approach for protecting workers against [COVID-19] because no standard that covers all of the Nation’s workers would protect all those workers equally.”  Following this rather harsh and direct language, the Court ordered its stay to continue.

As for the other lawsuits filed in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit courts, a random lottery is scheduled for November 16, 2021 to determine which court of appeals will hear all of these consolidated lawsuits.  If the chosen court of appeals renders a decision on the consolidated lawsuits upholding the ETS, it would appear this legal challenge is headed to the U.S. Supreme Court.