5th Circuit Continues Stay of OSHA ETS – What Do Employers Do Now?

Cozen O'Connor
Contact

Cozen O'Connor

As we reported a day after the November 5, 2021, effective date of OSHA’s ETS, the Fifth Circuit issued a temporary stay of the ETS pending further proceedings. On November 12, 2021, a three-judge panel of the Fifth Circuit continued the stay in a 22-page decision that contained numerous quotes and footnotes aggressively attacking the constitutionality of the ETS by stating, among other things, its promulgation grossly exceeds OSHA’s statutory authority. The Court further opined that the ETS is “fatally flawed” as its reach extends far beyond the Agency’s mission. The decision further noted, what many practitioners have already observed, that the ETS appears to be a “workaround” to impose a federal vaccine mandate.

The decision concluded by specifically ordering OSHA to “take no steps to implement or enforce the mandate until further court order.” Notwithstanding the continued stay, employers are left to wonder what should they be doing, if anything, about complying with the ETS?  As part of the federal court system’s rules on multi-jurisdictional litigation, all of these legal challenges to the ETS will be consolidated before a single circuit court via a lottery system. The selection process is currently scheduled to take place on November 16, 2021. Whichever circuit court is designated to hear these cases can continue or lift the stay, so it may be a little premature to completely predict the fate of the ETS. However, the 5th Circuit’s decision certainly conforms to what many of us have predicted, i.e., that the ETS will eventually be overturned. Unfortunately, covered employers still need to prepare for compliance, although they may wish to hold off on announcing their intentions of implementing a mandatory vaccine policy or permitting weekly testing until it hears from the Circuit Court, which will be responsible for reviewing these challenges on the merits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.