The OSHA ETS Mandate Has Been Stayed by the Fifth Circuit Pending Further Court Review. Now What?

On Nov. 6, 2021, the U.S. Fifth Circuit Court of Appeals stayed OSHA’s emergency temporary standard (ETS) vaccine mandate pending expedited judicial review.[1]The Fifth Circuit, in a case filed by staffing companies, determined that the vaccine mandate presented “grave statutory and constitutional issues” meriting the stay. The relief the petitioners requested in the Fifth Circuit was “an order (temporarily) staying enforcement of the ETS in the United States.” The court ordered the government to respond by Nov. 8 at 5 p.m. to the petitioners’ motion for a permanent injunction. The petitioners are permitted to file a reply brief by 5 p.m. Tuesday, Nov. 9. The State of Texas filed its own motion to stay on Nov. 7, 2021.

At the same time, the U.S. Sixth Circuit Court of Appeals is considering an emergency motion to stay filed by seven states – Kentucky, Ohio, Tennessee, Kansas, Idaho, Oklahoma and West Virginia.[2]

The Eleventh Circuit is also considering a petition for review challenging the ETS filed by Florida, Alabama and Georgia as well as by two private businesses, two private schools and two business associations.[3]

The U.S. Eighth Circuit Court of Appeals is considering a petition for review and motion to stay filed by Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, Wyoming and various private businesses, as well as a Catholic school, a Christian employers organization and the Home School Legal Defense Association.[4]

The U.S. Seventh Circuit Court of Appeals is also considering a petition for review and motion to stay filed by two Wisconsin manufacturers[5] and a similar suit was filed by the State of Indiana in the Seventh Circuit.[6]

The pending lawsuits filed Friday concerning the ETS (along with any additional suits filed by Nov. 15, 2021) are expected to be consolidated before a single federal circuit court. That circuit is expected to rule on whether previous grants or denials of temporary stays will stand and to weigh in on the constitutionality of and other challenges to the ETS mandate, subject to potential Supreme Court review.

As reflected in the Fifth Circuit’s stay, the issues involve serious challenges to OSHA’s exercise of federal power. Five out of six previous challenges to other emergency temporary standards issued by OSHA were stayed either in whole or in part.[7] The OSHA rulemaking process typically takes 93 months, and the ETS process is a rare short-circuiting of that time-consuming process, which includes notice and process rulemaking. The challenges here include the contention that the ETS is an unconstitutional exercise of federal power by OSHA. The petitioners contend that the law vaguely defines the terms “grave danger,” “substance or agent,” and “new hazard” and that the nearly two-year-old hazards posed by the pandemic are not exclusively “occupational” hazards as required for jurisdiction. Indeed, OSHA itself has previously stated that COVID-19 is a communitywide hazard not unique to the workplace.[8] The legal challenges go to the core of the 1970 OSHA Act and its applicability to healthcare decisions.

In the meantime, ETS compliance costs and associated efforts are significant. It is important for employers to decide now, as a policy matter, whether they intend to maintain a vaccine mandate in their workplaces regardless of whether the ETS rises or falls in litigation. Before prognosticating the outcomes of legal challenges, employers should address this threshold policy question, which is not controlled by the outcome of the litigation. Indeed, federal law permits employers to mandate vaccines, testing and masking, subject to legally required exceptions for certain religion-based and disability-based accommodation requests and state law requirements. In other words, the litigation is important but does not control the overarching policy decision of whether an employer intends to mandate the vaccine and/or testing.

For employers that opt to require vaccines and testing, the compliance costs are not wasted if the ETS is ultimately found unlawful. The first compliance date in the ETS is Dec. 5. Employers that will enforce mandates similar to the ETS regardless of whether the ETS rises or falls are not faced with the potential wasted compliance efforts if the ETS is unenforceable. Employers that do not intend to enforce mandates unless the ETS is found lawful have a window prior to Dec. 5 to monitor the quickly moving litigation and make decisions. These employers, with legal guidance, should make the policy decision of when to begin compliance preparation efforts and should be prepared to have the compliance framework in place pending further court guidance.