On November 12, 2021, the United States Fifth Circuit Court of Appeals affirmed its stay on the Federal Vaccination and Testing Emergency Temporary Standard (VAX ETS) pending what it called “adequate judicial review of the petitioners’ underlying motions for a permanent injunction” and further ordered that Federal Occupational Safety and Health Administration’s (Fed/OSHA) take no steps to implement or enforce the VAX ETS.  

The Fifth Circuit concluded that COVID-19 does not pose a grave danger from a toxic or physical substance contemplated by the Occupational Safety and Health Act.  And, wrote that the VAX ETS was overly broad because VAX ETS was based on the number of employees as it was set to apply to workplaces of 100 or more employees.  In a rare decision, the Court also believed that the VAX ETS is also underinclusive because the VAX ETS failed to protect employees in smaller workplaces who were exposed to the same danger.

Healthcare employers, federal contractors and subcontractors are reminded that they continue to be subject to different regimens requiring vaccinations in the workplace under the Department of Health and Human Services Centers for Medicare and Medicaid Services COVID-19 Health Care State Vaccination interim rule (published November 5, 2021) and Executive Order 14042.  On November 4, 2021, the White House announced that the deadline for federal contractors and subcontractors to have their workforces fully vaccinated was extended to January 4, 2022.

Meanwhile, petitions for review of the VAX ETS have been filed in almost every United States circuit court.  As a result, we expect to see all related petitions to be consolidated soon.  The consolidated case, in one circuit, will next determine whether to continue, alter or deny further stay and/or permanent injunction on issues that appear to be heading to the United States Supreme Court.