On Friday, November 12, 2021, in BST Holdings, L.L.C., et. al. vs. Occupational Health and Safety Administration, et. al., Case: 21-60845, the Fifth Circuit Court of Appeals granted the plaintiffs’ motion to stay implementation of OSHA’s November 5, 2021 Emergency Temporary Standard (the “ETS”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask.
The Fifth Circuit stayed implementation of the ETS on the grounds that the plaintiffs’ challenge to OSHA’s ability to issue the ETS is likely to succeed and that the plaintiffs would suffer irreparable harm if the ETS was not stayed.
Although the Fifth Circuit’s rationale for why the plaintiffs’ challenge to the ETS is likely to succeed was varied, the essential basis for the court’s ruling was that, in its view, OSHA had overstepped its regulatory authority by adopting a rule that was both over-inclusive, in that it covered all employers with more than 100 employees regardless of their industry or any safety concerns applicable in specific industries, and under-inclusive, in that it did not apply to employers with less than 100 employees. The Fifth Circuit viewed this exclusion as ”imply[ing] that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
The Fifth Circuit had significant questions as to whether COVID-19 fell within category of harm that can be addressed by an ETS. According to the Fifth Circuit, an ETS must address “substances or agents determined to be toxic or physically harmful” in the workplace, and COVID-19 is an airborne disease that is “both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees.” As such, the Fifth Circuit concluded that it does not fall into the category of “substances or agents determined to be toxic or physically harmful” that can be addressed by an ETS. The Fifth Circuit also noted that an ETS must address “new hazards” in the workplace, and COVID-19 is a recognized hazard and no longer new.
The Fifth Circuit also questioned the constitutionality of the ETS, asserting that “the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power.”
Ultimately, the Fifth Circuit found that staying the ETS was in the public interest:
“From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials.”
There are now ETS-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts. The legal challenges to the OSHA ETS will be consolidated and heard by a single Court of Appeals.
The Judicial Panel on Multidistrict Litigation will conduct a lottery, expected to occur on November 16, 2021, to select which Court of Appeals will hear the consolidated litigation. The Court of Appeals that is ultimately chosen will have the option to reverse the Fifth Circuit stay or continue it.
After the Fifth Circuit’s decision, OSHA posted the following statement to its website dedicated to the ETS:
“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.”
Given this, and the fact that the challenges to the ETS will be randomly assigned to a Circuit Court, employers should continue their internal discussions about the approach that they will take if the ETS is sustained, such as:
- Identifying which workplaces will be affected;
- Identifying the collective bargaining agreements that might be affected; and
- Determining whether they are going to apply a mandatory vaccination policy or testing/masking regime.
This will permit employers to understand the scope of the issues and are steps that can be taken without having to invest significant resources at this time to drafting policies, sourcing testing options, and other implementation steps while we wait to see how the challenges to the ETS are resolved.