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Circuit Court Stays Enforcement of OSHA’s Emergency Temporary Standard and OSHA Complies—More Developments Anticipated This Week

On Friday, November 12, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit issued a strongly worded decision granting a motion to prevent the Occupational Safety and Health Administration (OSHA) from implementing or enforcing the Emergency Temporary Standard (ETS) that went into effect on November 5, 2021. Among other things, the ETS mandates that employers with 100 or more employees require that their workers be fully vaccinated against COVID-19 or submit to precautions like regular testing and using face coverings. However, the Fifth Circuit ordered OSHA to take no action to implement or enforce the ETS until further court order.

In a 22-page decision, the panel of three Circuit Judges reaffirmed an initial stay, holding that the ETS “grossly exceeds OSHA’s statutory authority” and concluding that the petitioners’ challenges to the ETS are likely to succeed on the merits. In so holding, the Fifth Circuit questioned whether the COVID-19 pandemic constitutes the type of emergency meant to be remedied by an ETS, and determined that COVID-19 does not pose the kind of “grave danger” contemplated by the Occupational Safety and Health Act to support the need for an ETS. The court also characterized the ETS as both “staggeringly overbroad” and “underinclusive”—an effort to apply a “one-size-fits-all Mandate” to a complex problem.

Over the weekend, OSHA posted a notice on its website, stating:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

After initial court action blocked the ETS, attorneys for the Biden administration asked the Fifth Circuit, which is based in New Orleans and covers the states of Louisiana, Mississippi, and Texas, to await the status of similar lawsuits filed around the country. Court watchers expected the Biden administration to ask the Judicial Panel on Multidistrict Litigation to consolidate this and similar cases into a single case to be heard by a single Circuit, based on a lottery drawing to be held on November 16, 2021. The Fifth Circuit’s decision to reaffirm its initial stay raises new questions as to the next procedural steps. The Biden administration, for instance, may seek immediate review of the Fifth Circuit decision by the U.S. Supreme Court.

In the meantime, as a result of the Fifth Circuit decision, OSHA is barred from taking any actions to implement or enforce the ETS. Employers wondering what to do next should recall that the question before the Fifth Circuit is whether the law authorizes a federal agency to issue such a broad rule. However, in other litigation challenging the authority of states and private employers to require health and safety measures—including mandatory vaccination against COVID-19—courts have almost uniformly upheld such policies. While enforcement of the OSHA ETS remains on hold until further notice, private employers should consider continuing their preparations to comply with the ETS deadlines, and must, regardless of the outcome of the litigation regarding the ETS, continue to effect workplace policies that comply with applicable state and local requirements.

©2023 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 319

About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

Steven M. Swirsky labor employment lawyer health care and life sciences attorney
Member of the Firm

STEVEN M. SWIRSKY is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies.

Mr. Swirsky:

  • Advises employers on a full range of labor and...
Robert J. O’Hara Labor and employment lawyer Epstein Becker
Member of the Firm

ROBERT J. O’HARA* is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. His practice focuses on employment law counseling and litigation as well as human resources counseling, compliance, and training.

Mr. O’Hara’s experience includes:

  • Conducting and overseeing workplace investigations (including sexual harassment, bribery, the Foreign Corrupt Practices Act, product quality, supply chain theft, and malfeasance of every kind), executive terminations, and...
Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...