The ink was barely dry on OSHA’s November 5th Emergency Temporary Standard (ETS) before facing a legal challenge. The OSHA ETS mandated that companies with 100 or more employees ensure their workforce were either vaccinated against COVID-19 or undergo weekly testing by January 4, 2022. A group of businesses, religious organizations, and states asked the Fifth Circuit Court of Appeals to grant a preliminary injunction preventing enforcement of the rule. A three-judge panel sided with the Petitioners who argued that OSHA overstepped its authority. The court’s decision can be found here. Specifically, Petitioners contended the ETS was “a quintessential legislative act” that Congress should have enacted, not OSHA. In issuing the stay, the court cited “grave statutory and constitutional issues.”
As it stands, the ETS is on hold pending further briefing by the parties. The court has given the government until 5:00 p.m. on Monday, November 8 to submit their brief and the Petitioners a deadline of 5:00 p.m. on Tuesday, November 9 to reply. Regardless of whether the Fifth Circuit lifts the stay or grants a permanent injunction, further appeals seem likely, as does the likelihood that implementation of the ETS will be delayed.
Though the ETS may be delayed, or potentially struck down entirely, large employers should still prepare to comply with the rule’s requirements. The first deadlines are quickly approaching on December 5th and companies should ensure they are prepared should the rule stand.
Bottom Line
Other challenges to the OSHA ETS have been filed in the Sixth, Seventh, Eighth Circuit, and Eleventh Circuits. Ultimately, the Supreme Court may be asked to decide the fate of the ETS. We expect the Fifth Circuit to issue its decision soon, so stay tuned. We will continue to monitor and report further developments.