On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring, among other things, that most employees of companies with 100 or more employees submit to weekly COVID-19 testing and wear a face covering while at work indoors. We summarized the ETS in a previous post.

Almost immediately after it was published, the ETS sparked a wave of lawsuits challenging OSHA’s authority to issue such a sweeping mandate without engaging in notice and comment rulemaking.  In fact, through November 15, 2021, lawsuits were pending in 12 different federal Circuit Courts of Appeals across the country.

The Multi-Circuit Lottery

When lawsuits are filed in multiple Circuit Courts challenging the same agency action, the lawsuits will be consolidated before one Court of Appeals, to be selected in a “lottery” conducted by the U.S. Judicial Panel on Multidistrict Litigation (“JPML”).  The JPML held the lottery in the ETS cases on November 16, 2021.  And the winner is . . . the U.S. Court of Appeals for the Sixth Circuit, which will hear the consolidated cases and ultimately decide whether the ETS is a valid exercise of OSHA’s authority.

Before the multi-circuit lottery was held, however, one of the circuits wherein challenges were filed – the Fifth Circuit – issued a temporary stay of the ETS. On November 12, 2021, the Fifth Circuit issued an opinion, which serves as a strong critique of the ETS and lays out several reasons why that Court believed the challenges are likely to succeed, any one of which would be sufficient reason for the Sixth Circuit to vacate the ETS.

The Fifth Circuit Opinion

First, the Fifth Circuit observed that OSHA’s authority to establish emergency temporary standards under 29 U.S.C. § 655(c) – which it may do without going through notice-and-comment rulemaking – is an “extraordinary power” that is to be “delicately exercised” in limited situations.  In issuing the ETS, however, OSHA acted with a “one-size-fits-all sledgehammer,” rather than a “delicately handled scalpel,” and failed to account for differences in workplaces and workers that bear on workers’ susceptibility to the grave danger that the ETS purports to address.

Second, to be lawfully enacted, an emergency temporary standard must: (1) address “substances or agents determined to be toxic or physically harmful” or “new hazards” in the workplace; (2) show that workers are exposed to such “substances,” “agents,” or “new hazards” in the workplace; (3) show that said exposure places workers in “grave danger”; and (4) be “necessary” to protect workers from such grave danger.  The Fifth Circuit concluded that the ETS did not satisfy these requirements.

Next, the Fifth Circuit found that OSHA had failed to show that the ETS was necessary to protect workers from a grave danger.  The court observed that the ETS is the “rare government pronouncement” that is both overinclusive – it applies to employers and employees in all industries and workplaces without accounting for the differences in risks faced by employees in different settings – and underinclusive – it purports to protect workers of companies with 100 or more employees, but not workers of companies with less than 100 employees.

Finally, the Fifth Circuit concluded that the ETS raises “serious constitutional concerns”.  The court stated that the ETS likely exceeds the federal government’s authority under the Commerce Clause because it regulates “noneconomic inactivity” – a person’s choice to remain unvaccinated or forgo regular testing – that falls squarely within the states’ police power.  In addition, the Court cautioned that “concerns over separation of powers principles cast doubt over the [ETS’s] assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”

In the wake of the Fifth Circuit’s opinion, OSHA published the following statement on its website:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” 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.

What Next?

Now that the cases have been consolidated by the JPML, OSHA is likely to request that the Sixth Circuit lift the Fifth Circuit’s stay. The make-up of the Sixth Circuit Court of Appeals leans conservative, but the matter will be decided by a panel of three judges that is yet to be determined. While the fate of the ETS remains uncertain, it currently appears that OSHA will have an uphill fight at both the Sixth Circuit and, eventually, the Supreme Court.

Since planning for compliance with the ETS is burdensome – and the requirements may never actually become effective – it would be reasonable for employers to pause any plans intended solely to comply with the ETS until the Sixth Circuit rules on whether the stay will continue.  To be sure, the December 6, 2021, deadline to implement the requirements of the ETS (other than weekly COVID-19 testing for unvaccinated employees) is quickly approaching. However, we expect that employers should have clarity on whether the stay will remain in place before Thanksgiving. If the stay is lifted, employers would still have time before December 6, 2021, to take steps to implement the ETS, including preparing their policies and employee communications and creating or updating records indicating the vaccination status of their employees.

It should be noted that federal government contractors covered under Executive Order 14042 and related guidance issued by the Safer Federal Workforce Task Force, which we summarized in a previous post, and healthcare facilities covered under the CMS Rule should continue to plan for compliance with those separate requirements, at least for now. While there are also legal challenges to these separate vaccine mandates pending in the courts, many of the legal arguments differ based upon the underlying authority relied upon by the government when issuing the specific requirement. It is certainly possible that the ETS could be overturned, while EO 14042 and/or the CMS Rule could be upheld.

Meanwhile, COVID-19 new case rates are rising in Pennsylvania and across the northeast and upper mid-west. Employers should continue to consider reasonable measures to reduce the spread of COVID-19 in the workplace. There is no one-size-fits-all approach. Employer requirements on vaccination, testing, masking, and other mitigation measures vary widely. Pending further developments relating to the judicial review of the ETS, most employers continue to have flexibility to do what is deemed best for their business and their employees.

We will continue to keep you posted on developments with the ETS.