OSHA’s Vaccination and Testing Mandate Temporarily Stayed: What does it Mean for Employers?

Several states including Texas, Louisiana, South Carolina, Utah and Mississippi, and a group of private businesses, religious organizations, and individuals filed a petition with the United States Court of Appeals for the Fifth Circuit on Friday, November 5, 2021, claiming that the Occupational Safety and Health Administration (“OSHA”) exceeded its legal authority in issuing the agency’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The basis for their position was that OSHA did not meet the criteria for issuing an ETS.  OSHA’s authority to issue an ETS is limited to workplace hazards, but the petitioners argued that COVID-19 is not a hazard unique to workplaces; rather, it is a public health issue.  Other arguments include that OSHA cannot show that COVID-19 is currently a “grave danger,” that the ETS overlooks individual employees’ age and health, that COVID-19 is not currently a “new hazard” and therefore cannot be the subject of an ETS, and OSHA’s issuance of the ETS violates the non-delegation doctrine (and can only be passed by Congress).

The Court’s very short opinion states that petitioners met their burden in demonstrating that the issuance of the ETS poses “grave statutory and constitutional issues,” and, therefore a stay is appropriate.  Further consideration of the issue will be given based on the briefs submitted by OSHA and the petitioners over the next several days.

So what is the effect of the court’s “temporary stay”?  Technically, it means the ETS is not currently enforceable in the U.S. Fifth Circuit.  The Fifth Circuit includes Louisiana, Mississippi and Texas.  The Fifth Circuit Court will next decide whether it will issue a permanent injunction against the rule.  If it does, OSHA will likely petition the U.S. Supreme Court to overturn the injunction and uphold the ETS.  There are also petitions pending in U.S. Courts of Appeal for the Seventh and Eighth Circuit that attack the validity of the ETS.

While the courts are handling these petitions on an “expedited” basis, it is very doubtful that employers will know whether the ETS is actually enforceable by the time the ETS becomes effective.  The rule currently remains in place outside the Fifth Circuit, and employers are expected to comply beginning December 5, 2021, with full vaccination or testing to begin no later than January 4, 2022.

Because the ETS may ultimately survive court scrutiny or be modified by OSHA to address particular concerns, we recommend that employers under OSHA’s jurisdiction with 100 or more employees continue to prepare to comply with the ETS.  Not doing so risks noncompliance – resulting in substantial OSHA penalties – if the ETS is upheld.