This article was updated 11/17/21
On November 4, we shared news of the Occupational Safety and Health Administration’s (OSHA) release of the much-anticipated Vaccine and Testing Emergency Temporary Standard (ETS) applicable to private employers. As a refresher, the ETS requires employers with 100 or more employees to implement a mandatory vaccine policy or require unvaccinated workers to undergo weekly COVID-19 testing and wear a face covering in the workplace.
After the ETS was issued, the 5th Circuit Court of Appeals almost immediately issued a stay temporarily enjoining implementation and enforcement of the OSHA rulemaking. After expedited briefing by both sides, on Friday, November 12 the 5th Circuit issued a permanent stay, citing serious constitutional concerns. In a 22-page opinion, the court determined that ETS was “overbroad” and the COVID-19 threat did not rise to the level of “grave danger” necessary to justify the ETS. This conclusion was based on a finding that the COVID-19 virus is widely present, not particular to any workplace, and is not life threatening to the vast majority of employees. The court also objected to the underinclusive nature of the ETS, in that it fails to protect workers in smaller employer settings simply based on an arbitrary number of employees, despite the fact that those workers are exposed to the identical alleged grave danger of COVID-19 exposure.
What does this mean, and what happens next?
The 5th Circuit’s ruling effectively blocks enforcement of OSHA’s ETS – for now. In response, OSHA published a statement it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Importantly, this is not the last word on the “vax or test” rule. Lawsuits similar to the one filed in the 5th Circuit are pending in multiple federal circuit courts across the country. When this happens, a blind lottery is utilized to consolidate all pending cases and select a circuit court to hear the legal challenge. That lottery took place on Tuesday, November 16, and the 6th Circuit was selected to hear the challenges. The 6th Circuit Court of Appeals, which is regarded as ideologically conservative, will have the opportunity to issue the controlling decision on the legal merits of the ETS. In so doing, the court could lift the 5th Circuit stay if OSHA’s arguments prevail, or issue a permanent injunction if the constitutional challenge wins out. Ultimately, it’s likely inevitable that the U.S. Supreme Court will have the final say.
What does this mean for employers?
The permanent stay enjoins OSHA from enforcing the provisions of the ETS. Given the very short implementation timeframe, the permanent stay is likely to push back compliance dates from the current December and January deadlines. That said, it’s likely that if the provisions of the ETS survive judicial review, new deadlines will come just as quickly. With that in mind, employers should continue to explore options for compliance and be ready to take action if and when necessary.
Visit our COVID-19 Resource Hub for the help you need to comply, including a replay and related resources of our November 11 The COVID-19 Vaccine: How to Prioritize Your People – Part 3 webinar and vaccine compliance toolkit.