Fifth Circuit Blocks OSHA’s Emergency Temporary Standard for Employers with 100+ Employees

Margaret "Peg" O'Brien
Director, Litigation Department
Published: NEHRA News
November 23, 2021

On November 12, 2021, the Fifth Court of Appeals stayed the enforcement of the OSHA Emergency Temporary Standard (ETS) requiring employers with 100+ employees to adopt a policy mandating employees to show proof that they have been fully vaccinated or submit to weekly testing starting in January 2022.

The Order found that the OSHA ETS is “fatally flawed” in that it is both “overinclusive,” since it applies to all industries based on size, without any analysis of the specific risks applicable in each industry, and “underinclusive,” since it only applies to employers with 100+ employees, and does not attempt to protect employees who work for small employers.  The Court further found that “the mere specter of the [OSHA] Mandate has contributed to untold economic upheaval in recent months” and that in enacting this ETS, OSHA had exceeded its powers and violated “the constitutional structure that safeguards our collective liberty.”

What does this mean for employers covered by the ETS? 

In its 22-page order, the Fifth Circuit Court of Appeals concluded by instructing OSHA to “take no steps to implement or enforce the ETS until further court order.”  While this court order is in effect, the OSHA ETS is not enforceable and therefore, the various deadlines within the ETS for distribution of a written policy (December 6, 2021) and collecting proof of vaccination status and/or implementing a testing program (January 4, 2022) are not operative.

Whether this OSHA ETS will ever actually go into effect remains unclear at this time.  Nonetheless, employers should continue to plan for the implementation of the ETS just in case the court’s stay is lifted and OSHA provides a short deadline for achieving compliance with the ETS’ terms.  In such a scenario, it may be hard for employers to draft and adopt a written policy, confirm the vaccination status of employees, attend to requests for exemptions, and implement a testing program all within a short time frame.  For these reasons, a wait and see approach may not be in the best interest of employers, even if the preliminary work winds up all for naught because the court permanently blocks the ETS from taking effect.

What does this mean for the other two federal mandates? 

This Fifth Circuit order has no impact on the Centers for Medicare and Medicaid Services’ vaccine mandate for healthcare workers or on President Biden’s Executive Order 14042 vaccine mandate for federal contractors.  Employers covered by either of those two separate federal requirements should continue to comply with each of those mandates’ requirements.

What are Next Steps for the OSHA ETS in the Courts?

On or before November 16, 2021, various legal challenges to the OSHA ETS, including the one from the Fifth Circuit, will be consolidated into a single matter, and will be eventually heard before a single federal Circuit Court of Appeals.  The selection of the single court of appeals will happen through a multi-district litigation process, governed by federal statute.   Following a decision from this selected single Circuit Court of Appeals, there will almost certainly be a review by the United States Supreme Court.

In other words, stay tuned for more legal updates.  McLane Middleton will continue to monitor these developments and will provide an update as soon as new developments occur.