Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
Late on Friday, Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit affirmed its previous order to stay enforcement of the Occupational Safety and Health Administration’s (OSHA’s) vaccine mandate pending full judicial review. On Nov. 5, 2021, OSHA promulgated its Emergency Temporary Standard (ETS), which requires employers to implement a policy mandating employees be vaccinated or submit to weekly tests for COVID-19 and wear face coverings at work. In its 22-page opinion, the Fifth Circuit detailed its reasons for staying enforcement of the ETS and directed OSHA to “take no steps to implement or enforce the Mandate until further court order.”
The most notable part of the Fifth Circuit’s order, perhaps, is its complete and total rejection of the legal viability of the ETS. At various points in the order, the Court finds that the ETS exceeds the power granted to OSHA, does not meet the statutory criteria for issuing an ETS and likely violates the U.S. Constitution. For employers frustrated with the looming compliance costs and staffing dislocations posed by the ETS, the order may provide some hope. At a minimum, the Fifth Circuit’s decision illustrates there are serious questions concerning the legality of the ETS.
7 key reasons why the ETS may be ‘fatally flawed’
The following are seven of the Court’s numerous reasons for finding the ETS to be ‘fatally flawed:’
- OSHA’s delay in implementing the ETS and its representations in prior litigation demonstrate that an emergency temporary standard was not an appropriate means to respond to the risks posed by COVID-19 and ultimately undermined its arguments that the ETS is now required.
- OSHA’s authority to issue an emergency temporary standard is “an extraordinary power that is to be delicately exercised in only certain limited circumstances.” In this regard, the Court noted that the ETS is a “one-size fits all sledgehammer” which does not recognize the vast differences in workplaces and the differences in threats to workers posed by COVID-19.
- The ETS is “staggeringly overbroad” because it applies to any private workplace with more than 100 employees, but fails to recognize that COVID-19 is a far greater risk to some employees than others.
- The ETS is also “underinclusive” because “[t]he most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.” This willingness to let some workers go completely unprotected is evidence that the “government’s interest in enacting liberty-restraining pronouncements is not in fact ‘compelling.’”
- COVID-19 does not meet the definition of grave danger, which is needed to issue an emergency temporary standard, because:
- Symptoms of COVID-19 range from “mild to critical;”
- The spread of the virus has varied over time;
- With more than 78 percent of citizens aged 12 and older vaccinated, there is a real question of whether the virus is a grave danger to most workers; and
- The ETS fails to explain OSHA’s and President Biden’s past statements that they were against vaccination mandates.
- The ETS likely exceeds constitutional authority because it seeks to regulate non-economic activity, in the form of compulsory vaccinations, where such power lies with the states.
- Allowing enforcement of the ETS, while litigation challenging the ETS is pending, will cause irreparable damage to employers in the form of compliance costs with a regulation that has little likelihood of being upheld.
Up next: A lottery?
Many employers are wondering if the Court’s decision means they are relieved from complying with the ETS. While for now, the answer is yes, that could change at any time. Under OSHA’s statutory scheme, challenges to an emergency temporary standard can be filed in federal courts of appeal rather than the federal district courts where most lawsuits must begin. As of this writing, challenges to the ETS have been filed in 11 different circuits. In situations like these, where multiple circuits are addressing the same issue, a lottery system is used to select the court that will decide the merits of the challenges to the ETS. This lottery is scheduled for Nov. 16, 2021.
The judicial panel on multi-district litigation manages the lottery process. The panel’s rules call for selecting the court from “a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Litigants cannot sway the lottery by filing multiple petitions in the same circuit. Instead, each circuit gets a single entry in the lottery no matter how many petitions have been filed there.
The initial challenge to the ETS was filed with the Fifth Circuit Court of Appeals, a circuit known for its conservative leanings. Last week, several unions filed strategic “challenges” to the ETS in six federal courts of appeal that traditionally have had more progressive leanings than the Fifth Circuit. These moves have been calculated to increase the odds that a court with a more favorable view of OSHA’s authority will be selected to hear the case. The court in which the case ultimately is heard could play a significant role in whether the ETS survives this legal challenge. From a historical perspective, it is worth noting that OSHA has lost five of the past six challenges to its emergency rules.
Regardless of the circuit court that wins the lottery, the fate of the ETS remains murky. Short term, the newly assigned court will have the authority to maintain or lift the stay that was issued by the Fifth Circuit. Long term, it seems that the fate of the ETS may be determined by the U.S. Supreme Court, where the Fifth Circuit’s rationale may be viewed favorably by the conservative majority of Supreme Court justices.
Business impact: What should employers do now?
While OSHA is currently restrained from enforcing the ETS, there is still more legal wrangling to come which could result in the stay being lifted. As a result, the prudent action for employers is to continue planning for implementation of OSHA’s ETS by the Dec. 5, 2021, deadline. Such steps include determining your employees’ vaccination status and whether or not you plan to allow the testing option and, if so, how testing will be conducted and who will pay for it.
If the Fifth Circuit’s stay is still in place on Dec. 5, 2021, the deadline for compliance with the initial requirements of the ETS, an employer might reasonably consider delaying implementation at that time, especially if it believes that implementation will hurt the business due to employee resignations. For now, businesses should prepare to comply, but remain flexible as the legal landscape can change quickly.
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.