On Saturday, November 6, 2021, the United States Court of Appeals for the Fifth Circuit, with appellate jurisdiction over Louisiana, Mississippi, and Texas, granted an emergency motion to stay the enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (the ETS) on COVID-19 vaccination and testing. The ETS, designed to prevent over 6,500 deaths by minimizing the risk of COVID-19 transmission in the workplace, was stayed based on “grave statutory and constitutional” grounds that the court left undefined.
The Order granting the emergency motion comes in response to a joint petition from personnel staffing companies, religious television networks, and Texas, Louisiana, Mississippi, South Carolina, and Utah. Together, the Petitioners argue that the ETS is unconstitutional where Congress impermissibly delegated its authority to the executive branch. The Petitioners further argue that the ETS, which applies to certain private employers with 100 or more employees, would worsen the effects of labor shortages by potentially motivating employees to leave for smaller employers that are not subject to the ETS.
The Fifth Circuit’s Order marks the first major action in response to the numerous nationwide legal challenges filed in response to the ETS and, separately, the federal contractor employee mandate, the latter of which is currently being challenged in the United States District Court for the Eastern District of Missouri by ten states claiming the requirement that all employees of federal contractors be vaccinated is “unconstitutional, unlawful, and unwise.”
The Fifth Circuit has given the government until 5:00 PM, November 8, 2021, to respond to the Petitioners’ motion for a permanent injunction, and has given the Petitioners until 5:00 PM, November 9, 2021, to reply.
With challenges like this spanning the country, employers will likely be waiting weeks, or even months, for a binding, nationwide determination. We recommend that employers use that time—beginning immediately if they have not already—to prepare for the ETS’s implementation in order to protect their employees and avoid costly citations and penalties for noncompliance. Covered federal contractors should continue efforts to comply with the federal contractor vaccine mandate, which, as of this writing, remains in effect.