Last week, the Fifth Circuit Court of Appeals affirmed its temporary block of the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021 which mandated that all employers with 100 or more employees require the COVID-19 vaccine or weekly COVID-19 tests and mask wearing for their employees. In its opinion, the court stated that OSHA did not have the authority to issue the mandate, and that even if it did, the mandate was “fatally flawed on its own terms.” The Fifth Circuit called the mandate both overinclusive (because it was directed at virtually all industries and workplaces in America) and underinclusive (because it only applied to employers with 100 or more employees, “while providing no attempt to shield employees with 98 or fewer coworkers from the very same threat.”) Instead of applying a “delicately handled scalpel” the Fifth Circuit said, the mandate “is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces.” The Fifth Circuit also held that it is “unclear” that COVID-19 poses the kind of grave danger the OSHA statute contemplates and argued that it “likely exceeds the federal government’s authority.” Thus, the Fifth Circuit ordered that “OSHA take no further steps to implement or enforce the Mandate until further court order.”
Shortly after the decision was issued, OSHA issued a statement that it would continue to fight for the ETS but would comply with the court’s order and take no further action to implement or enforce the mandate at this time.
So, what’s next? The order by the Fifth Circuit is only a temporary order and a court decision still has to be made as to whether the ETS will be permanently enjoined. However, that decision will not be made by the Fifth Circuit. The Sixth Circuit Court of Appeals in Cincinnati, Ohio has been randomly selected in the judicial lottery that occurs in cases like this where multiple lawsuits are filed in multiple circuits. All the cases from the other Circuit Courts will now be transferred to the Sixth Circuit, which is considered a good draw for opponents of the ETS since eleven of the sixteen judges in the Sixth Circuit were appointed by Republican presidents. However, we will have to wait to see what the Sixth Circuit decides. Of course, any decision by the Sixth Circuit is expected to be appealed to the United States Supreme Court.
Comment: Given the extensive work involved in getting ready to comply with the ETS, employers are encouraged to continue preparations and communication with employees. If you would like additional information on this topic, please contact Weber Gallagher’s Employment Group.