On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) ( 29 C.F.R. Part 1910.501), stemming from President Biden’s strategic plan, Path Out of the Pandemic.
As discussed in previous alerts, this ETS will require private employers with at least 100 employees, to implement a written policy that mandates their employees to be fully vaccinated or submit to weekly COVID-19 testing. A summary of the key points of the ETS can be found here, and a full copy of the rule and its summary can be found here.
The ETS originally went into effect on November 5, 2021. The standard requires employers to comply with all of the ETS’s requirements by December 6, 2021, except for the requirements in 29 C.F.R. 1910.501(g) (COVID-19 testing for employees who are not fully vaccinated). Additionally, the deadline for employees to be fully vaccinated is January 4, 2022.
Fifth Circuit’s Order to Stay Enforcement
However, on November 6, 2021, the Fifth Circuit Court of Appeals issued an order staying or halting enforcement and implementation of OSHA’s ETS. On November 12, the Fifth Circuit reaffirmed its ruling. The Fifth Circuit in its order discussed that the ETS is over-inclusive as it does not account for the differences all employers of different industries and sizes face. In addition, it stated the standard is also under-inclusive as it does not apply to employers who have less than 100 employees, though the COVID-19 virus threat remains the same. The Fifth Circuit also questioned whether OSHA met its standard in showing that that a “grave danger” warranted the ETS. Notably, for the ETS to survive, OSHA must show 1) employees are exposed to grave danger from the hazard (COVID-19 Virus) and 2) the ETS is necessary to protect employees from that danger.
Given the ongoing litigation, and consistent with the Court’s decision, OSHA has currently suspended the enforcement of the ETS, but announced it “remains confident in its authority to protect workers in emergencies.”
It is important to note that the Fifth Circuit’s Order is not the final ruling concerning the legality of the ETS. Given the numerous lawsuits currently challenging the ETS across the country, the Sixth Circuit Court of Appeals was randomly selected on November 16, 2021 to review the Fifth Circuit’s order to determine whether the stay should remain in effect, discontinued, or be altered. The final resolution of the enforcement of the ETS, however, will likely be determined by the United States Supreme Court.
As the ETS is under review, employers are faced with how to proceed since the ETS enforcement has been halted. Furthermore, it is unclear if the compliance dates will be extended if the ETS is deemed enforceable. Although some employers are chosing to take a wait and see approach, many legal experts recommend to continue preparations for compliance withthe ETS in the event it survives review.
Keep in mind that, the Fifth Circuit’s order does not affect the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order on mandatory vaccinations for federal contractors. Although both of these mandates are currently being challenged in court, neither of these rules have been halted by a federal court order as of yet.
While the ETS awaits review from the Sixth Circuit, on November 17, 2021, Republican members of the Education and Labor Committee in the U.S. House of Representatives introduced a Congressional Review Act resolution. If approved, this resolution would bar enforcement of the ETS and prevent OSHA from issuing a "substantially similar" rule in the future without authorization from Congress.
The author thanks law clerk Naomi Gulama for her help preparing this alert.