November 17, 2021 Update
After One Appellate Court Says No Más to OSHA’s Enforcement and Implementation of Emergency Temporary Standard, A New Appellate Court Enters the Ring
On Friday, November 12, after considering expedited briefing, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a 22-page order continuing its initial November 6, 2021, stay of the U.S. Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS or as referred to by the Fifth Circuit, the “Mandate”). The case was filed by various covered private employers, states, religious organizations, and individuals seeking a temporary stay of the ETS. The appellate court’s stay is in effect pending judicial review to determine if the court should issue a permanent injunction of the ETS. The court’s order effectively nullifies the ETS because OSHA is barred from both enforcing and implementing it.
What Does the November 12 Order Say?
The court explained that the statute that allows OSHA to bypass typical notice-and-comment proceedings for six months and instead be issued with immediate effect only if OSHA has reasonably determined “(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). It outlined several reasons why it found that the challengers were likely to succeed with arguing OSHA had not effectively done so here:
First, the court questioned whether COVID-19—“however tragic and devastating the pandemic has been”—“poses the kind of grave danger § 655(c)(1) contemplates.” It also was fairly pointed in suggesting that the slow response by OSHA, even since President Biden issued the charge to create the ETS, was a contradiction to its arguments about the urgency and necessity of the ETS now.
Second, regarding the necessity of the ETS, which the court referred to as a “one-size-fits-all sledgehammer,” the court expressed skepticism that the rule, as posed, could survive constitutional scrutiny, noting that in its 50-year history, OSHA had issued just 10 ETSs, of which six were challenged in court and only one survived to enforcement. The court also took issue with what it saw as a tenuous link between the decision to set the threshold at employers with over 100 employees and the “alleged” hazard presented by COVID-19.
Third, citing Supreme Court precedent from 1905 and 1922, the court questioned whether the ETS had overstepped into an area that has thus far been clearly reserved for states’ police powers.
What Should Employers Do Now?
In a statement following the Nov. 12 filing, OSHA stated on its website that enforcement activity around the ETS would be effectively paused amid the proceedings: “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." Given that we don’t yet know whether and to what extent those dates may be moved, if the ETS is allowed to proceed, the prudent and able employer, however, may want to proceed with evaluating options and strategies to comply in short order if it does, even if the pressure is potentially off to do so by December 5th.
Employers should also keep in mind that the Fifth Circuit’s order does not affect:
- the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers, which incorporates a vaccine mandate that will apply to covered Medicare and Medicaid-certified providers and suppliers, also by January 4, 2022;
- President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors, now with an extended compliance date of January 18, 2022; or
- States’ plans, if any, to implement and enforce their own mandates modeled after the ETS.
When Will We Have More Answers?
While there is no certainty, we will likely have more answers in the coming weeks. Just yesterday, the U.S. Judicial Panel on Multidistrict Litigation (“JMPL”) selected the U.S. Court of Appeals for the Sixth Circuit, based out of Cincinnati, Ohio, to preside over the consolidated petitions for review of the ETS filed in 12 U.S. circuit courts of appeal. The JPML's consolidation order, which combined a number of petitions for review, came after a “lottery” was held to determine which federal appeals court would be the deciding court.
Overall, this lottery pick favors the ETS’s challengers, but the three-judge panel that initially hears the case will be selected randomly and could view the ETS in a different light than the Fifth Circuit.
But employers should keep in mind that even if the Sixth Circuit views the ETS more favorably, we may not know the ending of this workplace story—that is, whether the ETS was a proper exercise of OSHA’s authority—until the U.S. Supreme Court chimes in.
Our COVID-19 team will continue to monitor developments related to the ETS and provide timely updates as new rulings are issued.
As every large employer should know by now, on November 4, 2021, Occupational Safety and Health Administration (OSHA), Department of Labor (DOL), announced the much-anticipated Emergency Temporary Standard (ETS). The interim rule, which was officially published on November 5, would require large employers (100 or more employees) to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt of a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. While the ETS is effective on November 5, 2021, it gives “covered employers” until December 5, 2021, to adopt their preferred written policy. Employees must be required to comply with those requirements by January 4, 2022. For more information on the ETS, please read OSHA Issues Emergency Temporary Standard on COVID-19 Vaccinations and Testing Mandates for Employers with 100 or More Employees, where my colleagues Amy Robinson and Rick Lentini have discussed the key provisions of the newly issued ETS.
This much-anticipated announcement sent employers and their attorneys in action to develop workplace policies, including vaccine-or-testing and return-to-work policies.
Two days later, on November 6, a three-judge panel on the United States Court of Appeals for the Fifth Circuit, granted a stay of the ETS—that is, it put the interim rule on hold pending further litigation.
The Fifth Circuit wrote that “Because the petitions give cause to believe there are grave statutory are constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The stay order is not a final ruling on the validity of the ETS but will halt its implementation at least temporarily.
On November 8, the U.S. Department of Justice (DOJ) responded, signaling that it will not seek immediate review from the U.S. Supreme Court, which could be because the ETS’s provision does not kick in until January 4. Citing 12 legal challenges to the ETS in six federal Circuit Courts, filed by 26 states and several private employers and organizations, and an appellate procedure rule regarding multi-circuit litigation involving review and enforcement of agency order, 28 U.S.C. § 21121, the DOJ’s letter states that the DOJ expects a “multi-circuit lottery” to take place on or about November 16, 2021. In the DOJ’s view, this process will result in the following: (1) the random selection of a single Circuit Court and (2) the consolidation of all legal challenges into one case. The designated Circuit Court will then be responsible for deciding these petitions and considering—or reconsidering—any stay orders. In addition, in a separate 28-page filing, the DOJ argued that the ETS was necessary to protect American workers from COVID-19, which the DOJ called a “workplace hazard,” and is well-grounded in law.
In the coming days and weeks, we should see additional rulings from the federal courts of appeal. And until there is a final court order, the fate of the ETS is unknown. Even though OSHA must wait to enforce the ETS until a stay is over, the status of the stay could change at a moment’s notice.
WHAT SHOULD EMPLOYERS DO NOW?
At this time, employers should consider continuing to prepare for the ETS, because it will likely take weeks for employers to comply with the upcoming deadlines in the ETS and OSHA may not look kindly on non-compliant employer who waited to implement the mandate-or-test rule until there was a final court ruling.
Also unknown is how, if at all, this stay will impact the states from moving forward with their own plans to adopt equivalent, or greater, protections in those states with approved OSHA state plans. Recall, under the ETS as initially proposed those states had 30 days from November 5, 2021 to adopt their own plan.
Our COVID-19 team will continue to monitor and report on developments with respect to the pandemic and will post updates on the firm’s COVID-19 Resource Center as additional information becomes available. If you have questions about how to ensure that your policies comply with the various applicable laws, please visit our COVID-19 Resource Center or contact a member of our Team.
1 This federal law requires agencies, boards, commissions, and officers to notify a court of appeals panel when one of their orders is challenged in at least two federal courts of appeal within ten days of its issuance.