OSHA COVID-19 Emergency Temporary Standard Suspended Pending Further Court Review
On November 12, 2021, the Fifth Circuit Court of Appeals ruled that the temporary stay it granted six days earlier on the OSHA COVID-19 ETS covering employers with 100 or more employees will remain in force pending adequate judicial review of whether or not to issue a permanent injunction.
Th Fifth Circuit’s decision was based on several grounds, including that the ETS exceeded OSHA’s statutory authority in that the ETS was not necessary to protect employees from grave dangers. The court explained that because COVID-19 is widely present in all workplaces and non-life threatening to a vast majority of employees, it does not pose the type of emergency and/or grave danger that must be present to sustain an ETS. The court also found that the ETS is not necessary to protect employees because it is, on the one hand, overinclusive because it defines “covered employers” by the number of employees rather than the actual threat posed, and on the other hand underinclusive (it fails to protect workers who work for businesses that employ less than 100 employees). Additionally, the court raised doubts that the ETS is sustainable under the U.S. Constitution.
In addition to the Fifth Circuit case, several other lawsuits have been filed in the various other federal appellate courts. In such multi-district litigation matters covering a single topic, a lottery is held to choose a single appellate court to which all pending cases would be transferred. On November 16, 2021, the Sixth Circuit Court of Appeals “won” the lottery. The Sixth Circuit is based in Cincinnati, Ohio and is considered one of the more conservative courts. Therefore, the Sixth Circuit now must determine whether or not the Fifth Circuit’s stay will remain in effect while it considers the underlying issues.
Yesterday, in light of these developments, OSHA announced on its website that while it “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.”
What effect do these developments have on the December 6 and January 4 deadlines? Since OSHA has ceased enforcing the ETS and taking any steps to implement it, the deadlines are likely no longer in effect as of this time. However, that could change quickly in the event the Sixth Circuit disagrees with the Fifth Circuit’s preliminary injunction and/or rules that the ETS is lawful and within OSHA’s statutory authority. Whatever may occur in the Sixth Circuit, it is virtually certain that the U.S. Supreme Court will review the matter, which should also further delay the ETS.
This newest ruling has no impact whatsoever on the three other COVID-19 mandates that have been issued - - OSHA’s COVID-19 Healthcare Emergency Temporary Standard, the Centers for Medicare and Medicaid Services’ (CMS) Emergency Regulation and the Executive Order 14042 covering federal contractors. All covered employers must continue to adhere to these mandates.
Moving forward, best practices continue to dictate that employers subjected to the ETS continue to prepare as if it will be in effect on or around December 6. To best prepare for the ETS, OSHA has issued policy templates for Mandatory Vaccinations and Vaccination or Testing and Face Covering.
We will continue to keep you apprised of all the new developments in this matter.