On Nov. 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the Occupational Safety and Health Administration's (OSHA) emergency temporary standard (ETS) on COVID-19 vaccination and testing. The Fifth Circuit (Louisiana, Mississippi and Texas) issued the stay just one day after the ETS's effective date.

As explained in Holland & Knight's alert on Nov. 5, OSHA published in the Federal Register an ETS that applies to employers in all workplaces that are under OSHA's authority and jurisdiction that have more than 100 employees firmwide or companywide. (See "OSHA Issues Anticipated Emergency Temporary Standard Regarding COVID-19 Vaccination and Testing," Nov. 5, 2021.) The ETS requires, with certain exceptions, that covered employees either 1) be fully vaccinated against COVID-19, or 2) wear face coverings and submit weekly COVID-19 test results to the employer.

Later on Nov. 5, a number of personnel staffing companies moved for a stay of the ETS in the Fifth Circuit. The companies argued that the ETS is unconstitutional because Congress impermissibly delegated its authority to the executive branch, thereby violating the non-delegation doctrine under Article I, Section 1 of the U.S. Constitution. The companies further contended that the ETS would irreparably harm them by exacerbating the labor shortages they have experienced by causing employees to leave for smaller employers that are not yet subject to the ETS.

On Nov. 6, the Fifth Circuit panel temporarily stayed OSHA's ETS regarding COVID-19 vaccination and testing. The court issued the stay after briefly noting that the petitioners' arguments gave "cause to believe there are grave statutory and constitutional issues with the [ETS]." It ordered expedited briefing on the issue, with the government to respond within two days and the petitioners to reply within one day thereafter.