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.