OSHA Suspends Emergency Temporary Standard (ETS) Enforcement Following Fifth Circuit Ruling – Now What?

On Friday, November 12, 2021, in BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration (OSHA), Case # 21-60845, the United States Court of Appeals for the Fifth Circuit issued an order affirming its November 6, 2021 order, staying the implementation and enforcement of OSHA’s November 5, 2021 Emergency Temporary Standard (ETS). The ETS requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or submit to weekly COVID-19 testing. The Fifth Circuit, which many consider to be the most politically conservative of all the circuit courts, issued its order following an expedited briefing schedule, prompted by an emergency motion to stay the ETS filed by various individuals, employers, religious groups and states. Pending further judicial review, the order barred OSHA from taking steps to implement or enforce the ETS. In response, OSHA has suspended all activities related to the ETS for the time being, stating: “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.” Businesses now face an uncertain future with OSHA conceding that it will abide by the court’s order while pursuing its reversal. Because similar challenges to the ETS have been brought in all but one of the 12 federal circuit courts of appeals, the U.S. Judicial Panel on Multidistrict Litigation will conduct a lottery as required by statute, pursuant to 28 U.S.C.A. §2112 (a)(3),  likely this week, to select which federal circuit will hear appeals in the numerous challenges, including with respect to the Fifth Circuit’s order. Any outcome from the circuit selected in the lottery process may and likely will be appealed to the U.S. Supreme Court.

The Fifth Circuit concludes the ETS is “fatally flawed on its own terms”

OSHA is permitted to bypass the typical notice-and-comment proceedings for regulations for six months by issuing “an emergency temporary standard to take immediate effect upon publication in the Federal Register” if OSHA “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). The petitioners in the Fifth Circuit, which include five states (Texas, Louisiana and Mississippi, which are the three states in the Fifth Circuit, as well as South Carolina and Utah) and a number of individuals and private organizations, allege that OSHA has failed to meet this demanding standard.

The Fifth Circuit considered four factors in evaluating whether a stay was warranted: (1) whether the challengers made a strong showing that they are likely to succeed on the merits; (2) whether the challengers will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Fifth Circuit concluded that each of these factors supported a stay.

Without deciding whether the ETS passes constitutional muster, the court concluded that the scope of the ETS grossly exceeded OSHA’s statutory authority. The court wrote that the ETS “is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”

Regarding the necessity of the ETS, the court concluded it is “staggeringly overbroad” and OSHA failed to account for the fact that the ongoing threat of COVID-19 is more dangerous to some employees than to others. The court wrote: “[A]ll else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains — the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.” The Fifth Circuit went on to question OSHA’s premise that “emergency” circumstances justify the ETS because the ETS does not protect those who work for employers with fewer than 100 employees. The court concluded that the true purpose for the ETS is not to enhance workplace safety, but to increase vaccination rates by any means necessary. The court also questioned the purported “emergency” supporting the need for the ETS by citing prior statements by OSHA and the Biden Administration that neither an ETS nor vaccine mandate were necessary.

For these reasons and several additional considerations cited in its order, the Fifth Circuit concluded the plaintiffs are likely to succeed on the merits, and the application of this factor weighed heavily in favor of a stay. The court also held the other factors — the likelihood of irreparable injury to the petitioners in the absence of a stay, the total lack of harm to OSHA if the stay were issued, and the public interest — favored the plaintiffs and therefore supported its order.

What does the Fifth Circuit’s stay order mean for employers?

The Fifth Circuit order bars OSHA from taking any steps to implement or enforce the ETS, and OSHA has in fact suspended its activities related to the implementation and enforcement of the ETS, pending future developments in the litigation. However, the Fifth Circuit’s ruling has no effect on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers or President Biden’s Executive Order 14042 addressing vaccinations for employees of federal contractors. Employers should continue to adhere to these requirements as applicable. Employers also should continue to monitor and abide by any applicable state or local orders addressing workplace safety requirements.  

Faegre Drinker will continue to monitor developments and provide updates as challenges to the OSHA ETS proceed.