On November 4, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) that proposed to require private employers, with 100 or more employees, to mandate vaccination against COVID-19 or to potentially allow for a test-based alternative.  The next day, five (5) states including Texas, South Carolina, Utah, Mississippi and Louisiana, along with several large employers and special interest groups, filed a Petition with the Fifth Circuit Court of Appeals requesting a stay of the ETS.  On November 12, 2021, the Court, following review of the arguments presented by both sides, issued a Decision to stay against enforcement of OSHA’s recently issued Emergency Temporary Standard pending “full judicial review.”

As part of its stay Decision, the Court reviewed three underlying challenges lodged against OSHA and the ETS.  The first was that OSHA exceeded both its statutory authority and the Constitution in asserting sweeping control over matters of public health, which have previously been handled by the states.  The second concerned OSHA’s apparent bypass of the required “notice-and-comment rules” for new standards.  Lastly, the Court found that the ETS was overly broad and “under-inclusive.”  The Court stated that the ETS presents sweeping provisions mandating vaccination for employees of large employers while failing to consider or apply the same safety protocols to employees of small employers.  Beyond issuing the stay, the Court further ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.”  As such, the Fifth Circuit Decision, in effect, imposes a nationwide stay over the ETS at the present time.

Currently, multiple petitions relative to the ETS are pending in other circuit courts.  It is expected that in the next week, all of these petitions will be consolidated into one circuit court to determine whether a permanent stay is appropriate.  Ultimately, the issue will likely be decided by the Supreme Court of the United States.

Please note that the Fifth Circuit Decision only applies to the private employer OSHA ETS issued on November 4, 2021.  It does not stay the vaccine requirement under the Executive Order for federal employees or federal contractors.  Nor does it stay the recent interim rule issued by the Centers for Medicare and Medicaid Services (“CMS”), or the prior OSHA ETS for Healthcare Workers issued earlier this summer.

Notwithstanding this stay, we recommend that our employer clients, with 100 or more employees, continue to consider the impact of the ETS and their potential plan for implementation pending final disposition in the courts.  The possibility remains that the ETS and corresponding mandate could be affirmed without modification of the current deadlines.  Although the Fifth Circuit’s stay may have relieved the urgency of implementation, best practices dictate that eligible employers should be prepared, if and when, a final rule becomes effective.

If you have any questions regarding the stay or the underlying OSHA ETS, please contact our Employment Law Group at 1-888-488-2638 or email at EmploymentLaw@c-wlaw.com.