Stay! 5th Circuit Affirmed Temporary Stay on OSHA’s COVID-19 Vaccine/Testing Requirements

As we previously wrote, on November 4, 2021 the federal Occupational Safety and Health Administration (“OSHA”) issued its Emergency Temporary Standards (“ETS”) requiring larger employers to verify their employees’ COVID-19 vaccination status, or require unvaccinated employees to undergo regular COVID-19 testing. Within two days, the 5^th Circuit Court of Appeals temporarily stayed the ETS, deciding they raise statutory and constitutional issues.

On November 12, 2021 the 5^th Circuit decided to reaffirm the stay. In part, the Court reasoned the standards are “fatally flawed” as they are both over inclusive (making little attempt to account for the differences between various workplaces), and under-inclusive (by purportedly protecting employees with 99 or more co-workers, while making no attempt to protect employees with 98 or fewer co-workers).

The Court then held OSHA did not meet the necessary factors to justify the emergency standards:

• COVID-19 is not particular to any workplace,
• OSHA did not establish that COVID-19 is present in all covered workplaces, and
• It is unclear if COVID-19 “poses the kind of grave danger” that justify the ETS.

The 5^th Circuit also indicated the administration’s initial refusal to impose a vaccine mandate further belies the notion that COVID-19 poses the kind of emergency that allows the “extreme measure of an ETS.”

Further, the Court reasoned that applying the mandate to larger employers (100 or more employees) only belies the premise that “any of this is truly an emergency,” and implies that the mandate’s “true purpose … is to ramp up vaccine uptake by any means necessary.”  

Finally, the Court held the stay is required to protect the petitioning companies from financial effects of lost or suspended employees, costs associated with the mandate, the diversion of resources necessitated by the mandate, or by OSHA penalties.

What’s Next?

As of now, the deadlines for compliance with the ETS (December 4, 2021 for implementing a policy and January 4, 2022, for vaccine verification/testing requirements), are not in effect. Notably, the stay has no bearing on the executive order requiring federal contractors to show proof of vaccination as of January 4, 2022.

A total of 34 petitions were filed in various Circuit Courts regarding this matter. The petitions were consolidated and will be heard before the Ohio-based 6^th Circuit (unless transferred to a different court), which may decide to uphold or lift the 5^th Circuit’s stay.

However, any subsequent decision regarding the stay will likely make its way to the U.S. Supreme Court.

Tal Burnovski Yeyni represents employers in compliance matters.