In Harsh Rebuke, Federal Appeals Court Extends Stay of OSHA ETS Rule

  • Nov 14, 2021
  • OSHA
  • Grant T. Collins

As we previously reported, on November 5, the Occupational Safety & Health Administration (“OSHA”) issued an Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”).  The OSHA ETS Rule applies to employers with 100 or more employees.  While the OSHA ETS Rule is effective immediately, OSHA will require employers to comply with most regulatory requirements by December 6 and the vaccination or testing requirement by January 4, 2022.

The OSHA ETS Rule was immediately challenged by more than 26 states and employer groups in federal courts throughout the country.  On November 6, a court in the Fifth Circuit (which covers Texas, Louisiana, and Mississippi), issued a “stay” preventing OSHA from enforcing the OSHA ETS Rule “pending further action by this court.”  The request was for a “nationwide” stay, so the court’s order seemingly has application beyond the Fifth Circuit.

Stay of Enforcement Extended

Late Friday, the Fifth Circuit three-judge panel issued a 22-page order extending the “stay” of enforcement of the OSHA ETS Rule “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”  A copy of the decision is available here.

The thrust of the petitioners’ challenge to the OSHA ETS Rule is that the rule is constitutionally invalid and, in addition, the OSHA ETS Rule is not authorized by the Occupational Safety and Health Act, which created OSHA.  In its latest decision, the three-judge panel seemed to suggest that the petitioners had the better arguments.

Fifth Circuit Finds ETS Rule Constitutionally “Dubious” and “Fatally Flawed”

Constitutionally speaking, the Fifth Circuit questioned whether OSHA (or even Congress) has the constitutional authority to “make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”  Even if Congress would have the authority under the Commerce Clause, the Fifth Circuit noted that the “nondelegation” doctrine would prevent Congress from delegating such sweeping authority to OSHA.

Even setting aside the constitutional concerns, the Fifth Circuit concluded that the OSHA ETS Rule was “fatally flawed” as both underinclusive, overinclusive, and likely extends beyond the power Congress gave the agency – even if it could make such a delegation.  As the Fifth Circuit explained:

On the dubious assumption that the [OSHA ETS Rule] does pass constitutional muster – which we need not decide today[] – it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that 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). The Mandate’s stated impetus-a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to[]-is unavailing as well.  And its promulgation grossly exceeds OSHA’s statutory authority.

Given these constitutional and drafting concerns with the OSHA ETS Rule, the Fifth Circuit specifically found that those challenging the new rule “show a great likelihood of success on the merits.”

Next Steps

The Fifth Circuit will next likely set a briefing schedule to address the request for a “permanent injunction” which, if granted, would permanently prevent OSHA from enforcing the OSHA ETS rule.  This would certainly not be the end of any legal challenges, as there are numerous similar lawsuits in other jurisdictions and any final decision by the Fifth Circuit will undoubtedly be appealed to the U.S. Supreme Court.

Bottom Line

While it is too early to tell whether these legal challenges will be successful in invalidating the OSHA ETS Rule, Friday’s decision certainly shows that the rule will face significant legal hurdles.

For employers, though, this is not a license to ignore the OSHA ETS Rule.  Given the tight deadlines for compliance, employers should continue work diligently to be in compliance by December 6 and January 4.

We will continue to monitor this issue as it develops.