Earlier this month, the Occupational Safety and Health Administration (“OSHA”) published its long-awaited Emergency Temporary Standard (“ETS”). The ETS establishes minimum COVID-19 vaccination and testing requirements for private employers with 100 or more employees.
As expected, soon after the ETS was published, several states (including Georgia) and businesses filed lawsuits challenging the legality of the ETS. The crux of these lawsuits alleged that the ETS was unconstitutional and that OSHA acted beyond its authority.
On November 6, 2021, the Fifth Circuit Court of Appeals issued a brief preliminary ruling that blocked implementation of the ETS pending further briefing in the court. On November 12, 2021 the Fifth Circuit entered a 22-page opinion resulting in a preliminary stay of the law.
Court Found Mandate Overbroad
The opinion bashed the Mandate on several grounds – even challenging the necessity of the Mandate:
“We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.”
You can access the full Opinion here.
Significance to Employers
In light of the Fifth Circuit’s ruling, OSHA announced on its website that “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.”
This does not end the ETS saga. There will be plenty of legal fireworks in the coming weeks. The court’s ruling is only temporary. In order to efficiently address all of the lawsuits that were filed by the States and businesses, the U.S. Judicial Panel on Multidistrict Litigation has since decided that only one court – the Sixth Circuit Court of Appeals – will preside over litigation challenging the ETS. Regardless of how the Sixth Circuit rules, the matter is likely to make its way up to the U.S. Supreme Court.
As a practical matter, employers that fall within the ETS have a breather. The litigation will likely push back the upcoming December and January deadlines to implement a policy and comply with the vaccination requirements. However, this litigation does not impact OSHA’s vaccination requirements for federal contractors or its ETS covering healthcare workers.
We continue to monitor this issue and provide timely updates.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
