Last week, the Fifth Circuit Court of Appeals issued its second stay against OSHA’s emergency temporary standard (“ETS”) requiring large private employers to “vaccinate or test” their employees (the ETS is summarized here).  The ETS, published on November 5,  came under immediate challenge by various states and private parties (including individual businesses and trade associations) in several circuit courts of appeal across the country, including the Fifth Circuit and the Eleventh Circuit (for an overview of those challenges, see Lowndes’ update here).

Seeking to maintain the status quo pending full briefing of the legal arguments of the parties, the Fifth Circuit issued a temporary stay on Saturday, November 6, 2021, staying the ETS.  Thereafter, several petitioners filed motions to stay the ETS, OSHA filed responses to some of those motions, and the petitioners filed replies to OSHA’s responses.

With the briefing of the parties’ legal arguments complete, the Fifth Circuit ruled on the motions to stay and issued a 20-page order today staying the ETS pending “adequate judicial review” of the petitioners’ “underlying motions for permanent injunction” against OSHA and further ordered OHSA to “take no steps to implement or enforce the Mandate until further court order.”  The Fifth Circuit found the traditional four-factor test in analyzing whether to grant a stay all weighed in favor of staying the ETS .

• First, the Fifth Circuit found the petitioners’ challenges to the ETS would likely succeed on the merits.(finding the ETS was both over- and under-inclusive as well as of dubious constitutionality and enacted two years after the “emergency” it was meant to address began).
• Second, the Fifth Circuit found the petitioners would be irreparably harmed if the ETS was not stayed (finding the ETS would impose financial costs on employers in the form of losing employees, compliance and monitoring costs, and financial penalties for employers who fail to punish or test unwilling employees).
• Third, the Fifth Circuit found staying the ETS would do OSHA  ‘no harm whatsoever.”
• Fourth, the Fifth Circuit found staying ETS was “firmly in the public interest” given that the “specter of the Mandate has contributed to untold economic upheaval in recent months” and because the public interest is served by maintaining the “constitutional structure” of the U.S. as well as the liberty of individuals “to make intensely personal decisions according to their own convictions- even, or perhaps particularly, when those decisions frustrate government officials.”

A concurring order from the Fifth Circuit’s Judge Duncan added the legal challenges to OSHA’s “unprecedented mandate” were “virtually certain to succeed” as OSHA failed to invoke any statute “expressly authorizing” the ETS and relied instead on an emergency provision to address workplace substances, agents, or hazards used only ten times in the last 50 years but never to mandate vaccines.  Judge Duncan noted: “Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question.  Whether OSHA can do so does not.”

What will happen with the ETS and the Fifth Circuit’s stay once all the challenges to the ETS are consolidated before one circuit court of appeals remains to be seen.  Consolidation in front of a different circuit court could be decided early next week; it is entirely possible that if a different circuit court is selected to hear the consolidated challenges, that court may lift the Fifth Circuit’s stay of the ETS.

It remains prudent for employers to continue to prepare as if the ETS will go into effect December 5, 2021, with respect to all its requirements aside from its vaccinate-or-test requirement, which goes into effect January 4, 2022, if the ETS survives so that covered employers are not caught by surprise if the ETS is ultimately upheld against all challenges.

Lowndes will continue to post updates as legal developments unfold.