OSHA published an ETS on Nov. 5, 2021, that applies to employers in all workplaces that are under OSHA's authority and jurisdiction that have more than 100 employees firmwide or companywide. 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.
Just one day after the ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed enforcement of the ETS pending further action by the court. On Nov. 12, 2021, the court granted the motions to stay filed by various petitioners — including companies, individuals and state governments — pending the court's review of the ETS.
Summary of Fifth Circuit's Opinion
The Fifth Circuit began by observing that OSHA has issued only 10 emergency temporary standards in its history and, of the six that were challenged in court, only one survived. It held that the petitioners met their burden with regard to the four factors needed for a stay: 1) a strong showing that they are likely to succeed on the merits, 2) irreparable injury absent a stay, 3) that issuance of a stay will not substantially injure the other interested parties and 4) that the public interest supports a stay.
First, the court found that the petitioners were likely to succeed on the merits because, even assuming that the ETS is constitutional, it is fatally flawed by being simultaneously over- and under-inclusive. OSHA included employees who would not be subjected to the same risks as those who, for example, worked shoulder-to-shoulder and yet excluded those who worked for an employer with 99 or fewer employees, regardless of those employees' working conditions. The court further noted that the need for the ETS was "unavailing" because OSHA waited nearly two years to promulgate the ETS and took nearly two months after announcing the need for an ETS. The court further found that the ETS exceeded OSHA's statutory authority because it was not an emergency exercise of OSHA's "extraordinary power" but was, instead, "a one-sized-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers' varying degrees of susceptibility to the supposedly 'grave danger' the mandate purports to address."
In addition, the court accepted the argument by the State of Texas that OSHA's power to issue an ETS did not cover a virus that is both widely present and not life threatening to the majority of people. The court also found that the danger from COVID-19 is not the type of "grave danger" that results from exposure to a chemical or substance that causes severe consequences in every worker. Rather, as OSHA acknowledged, its effects could range from mild to severe. The court also noted OSHA's about-face with respect to vaccination mandates: OSHA initially declined to implement one and later enacted the ETS. The court further concluded that the ETS was not "necessary" because, as noted above, it was both overbroad and under-inclusive. The court also observed that the ETS imposed severe economic consequences on the regulated industries and raised constitutional concerns by "regulating noneconomic activity that falls within the States' police power." It likewise noted the separation-of-powers concerns.
Second, the court concluded that denying the stay request would irreparably harm petitioners. For the individual petitioners, it would subject them to a "loss of constitutional freedoms." The businesses would face financial effects of compliance and may lose employees. And the states "have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach."
Third, the court found that the stay would not harm OSHA because OSHA has no legitimate interest in enforcing an unlawful ETS.
Finally, the court held that the stay was in the public interest to avoid economic uncertainty and workplace strife and protecting individuals' liberty. It therefore granted the motions to stay pending review and further ordered "that OSHA take no steps to implement or otherwise enforce the [ETS] until further court order."
Judge Stuart Kyle Duncan concurred to observe that OSHA's enactment of such a sweeping ETS was not a "hard" constitutional question and noted that "these challenges to OSHA's unprecedented mandate are virtually certain to succeed."
Notably, the Fifth Circuit's ruling does not impact OSHA's vaccination requirements for federal contractors or its ETS covering healthcare workers. It also does not impact the vaccination requirement issued by CMS for medical staff at facilities that participate in the Medicare and Medicaid programs.
By statute, if multiple petitions for review of an agency order are filed within 10 days of its issuance, the relevant agency (here, OSHA) must notify the U.S. Judicial Panel on Multidistrict Litigation, which must then randomly designate one court of appeals to consider the issue. All other petitions will be consolidated in that court of appeals.
In addition to the Fifth Circuit's ETS litigation, other petitions for review of the ETS have been filed in almost every other circuit court. The government has informed the Fifth Circuit that it expects the judicial panel on multidistrict litigation to conduct the multicircuit lottery on or about Nov. 16, 2021. The circuit courts not selected must transfer the pending cases to the circuit court randomly selected in the multicircuit lottery.
Importantly, the court chosen by the judicial panel on multidistrict litigation may modify, revoke or extend any stay granted by another court of appeals. Therefore, if the Fifth Circuit is not selected randomly by the judicial panel on multidistrict litigation, the circuit court that is selected will have the opportunity to reconsider the Fifth Circuit's decision to stay implementation of the ETS.