Fate of Fifth Circuit Stay of OSHA ETS Uncertain, as OSHA ETS Challenges Consolidated Before the Sixth Circuit Court of Appeals

This afternoon, the Judicial Panel on Multidistrict Litigation consolidated 34 petitions for review of the OSHA ETS pending in all 12 regional Circuit Courts of Appeals to the Sixth Circuit. The Sixth Circuit was selected via a lottery process required by federal law when multiple petitions for review of a single agency order are filed in at least two courts of appeals within 10 days after issuance of the order. As a result of this consolidation, the non-selected circuits (First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh and D.C. Circuits) will soon transfer their petitions for review of the OSHA ETS to the Sixth Circuit for all future proceedings.

OSHA suspended enforcement of the ETS following the Fifth Circuit’s November 12 opinion continuing its stay of the ETS (discussed in more detail below). As a result, the OSHA ETS implementation deadlines of December 6, 2021, and January 4, 2022, are no longer in effect pending further action by the Sixth Circuit. It is anticipated that the government will soon file with the Sixth Circuit a motion to lift this stay entered by the Fifth Circuit. The Sixth Circuit will ultimately determine whether to continue, alter or lift the Fifth Circuit’s stay. Regardless of the outcome in the Sixth Circuit, the fate of the OSHA ETS may well turn upon a review by the U.S. Supreme Court.

For now, the Fifth Circuit’s stay remains in place. Absent a prompt lift of this stay by the Sixth Circuit, it seems more likely than not that the OSHA ETS implementation deadlines of December 6 and January 4 will be pushed. But with the fate of the OSHA ETS and its implementation deadlines still uncertain, employers covered by the ETS are well-advised to continue preparation efforts for compliance with the December 6 requirements (addressed in our November 10 alert).

Importantly, the Fifth Circuit’s ruling on the OSHA ETS does not halt the federal vaccine mandates applicable to federal contractors or health care providers. While each of these governmental mandates is also being challenged, neither has been stayed to date, so employers covered by these mandates should continue to adhere to their requirements.

The Fifth Circuit’s Rationale for Staying the OSHA ETS

Late Friday, November 12, 2021, a three-judge panel of the Fifth Circuit Court of Appeals issued an opinion extending its stay of OSHA’s November 5, 2021, ETS. Here’s what you need to know:

WHAT HAPPENED?

The Court found that the petitioners (a collection of individuals, covered employers, states and religious groups) met all four traditional stay factors.

(1) Why Petitioners Would Likely Succeed on the Merits of Their Claims, According to the Court:

• Congress did not authorize OSHA to enact sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.
• The ETS—an “unusual response to exceptional circumstances” and an “extraordinary power that is to be delicately exercised”—is not the right tool. It simultaneously applies to too many people—as it covers employers and employees in virtually all industries and workplaces without accounting for patent differences between the different risks faced by those employees working in isolated environments and those employees working in more crowded work settings—and too few, since no protection is extended to employees in smaller workplaces who face the same harm.
• The OSHA vaccine mandate doesn’t satisfy the requirements for a valid ETS under 29 USC § 655(c)(1), because:
  • COVID-19 is NOT either a toxic/physically hazardous substance in the workplace (since it is everywhere) or a new hazard in the workplace (because OSHA previously identified COVID-19 as a recognized hazard);
  • OSHA did NOT demonstrate that all workers in all workplaces are exposed to COVID-19;
  • OSHA did NOT show that COVID-19 exposure at work was a grave danger to workers (because OSHA conceded effects of COVID-19 could be mild to critical);
  • And the ETS is NOT necessary to alleviate employees’ exposure to gravely dangerous hazards in the workplace (because it is overbroad and because OSHA itself had previously asserted that an ETS for vaccination was unnecessary because existing OSHA and non-OSHA standards addressed the issue).

(2) Why Denying the Stay Would Cause Petitioners Irreparable Harm, According to the Court:

• The ETS would substantially burden the liberty interests of reluctant individual employees put to a choice between “their job(s) and their jab(s).”
• The ETS would cause companies to suffer:
  • the business and financial effects of a lost or suspended employee;
  • compliance and monitoring costs associated with the mandate, and
  • the diversion of resources necessitated by the mandate or by OSHA’s plan to impose financial penalties on companies that refuse to punish or test unwilling employees.

(3) Why Granting the Stay Would NOT Substantially Injure OSHA or Others, According to the Court:

According to the Court, any abstract harm OSHA might suffer from a stay is outweighed by the harm absence of a stay would cause to countless individuals and companies.

(4) Why Granting a Stay is in the Public Interest, According to the Court:

In the view of the Fifth Circuit, the vaccine mandate has contributed to economic uncertainty, workplace strife and economic upheaval. Further, the public interest is served by maintaining the constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions.

What Does the Stay Mean?

Pursuant to the Fifth Circuit’s stay, OSHA cannot take steps to implement or enforce the ETS at this time. Again, this ruling has no impact on the Centers for Medicare and Medicaid (CMS) Final Rule for health care workers or President Biden’s Executive Order mandating vaccinations for federal contractors. Therefore, if applicable, employers should continue to comply with those requirements.

WHAT HAPPENS NEXT?

Stay tuned for whether the Sixth Circuit continues, alters or lifts the Fifth Circuit’s stay of the OSHA ETS.