OSHA Suspends COVID-19 Vaccination or Testing Rule – Next Steps for Employers

OSHA Suspends COVID-19 Vaccination or Testing Rule – Next Steps for Employers

As employers are likely aware, the Occupational Safety and Health Administration (OSHA) directive requiring employee vaccination or weekly testing is now on hold...

As employers are likely aware, the Occupational Safety and Health Administration (OSHA) directive requiring employee vaccination or weekly testing is now on hold. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its initial stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). In light of the court’s ruling, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

For employers, the legal challenges to the OSHA ETS raise legitimate questions regarding whether it makes sense to continue preparing to comply with the directive. At this point, it is difficult to predict how the litigation will end, although a ruling by the U.S. Supreme Court seems very likely. While taking a wait-and-see approach may be reasonable, employers must be sure not to be caught totally unprepared should the directive survive legal scrutiny.

OSHA's COVID-19 ETS Impacts Private and Public Employers

As discussed in greater detail in a prior article, on November 4, 2021, the U.S. Department of Labor published an emergency temporary standard implementing the Biden Administration’s mandate that all employers with 100 or more employees require vaccination or, as an alternative, weekly testing. The ETS also requires that these employers provide paid time for employees to get vaccinated and recover from vaccination side effects, and mandates that all unvaccinated workers wear a face mask in the workplace.

The ETS applies to private employers with 100 or more employees firm- or corporate-wide. State and local government employees are generally exempt from the Occupational Safety and Health Act (and would not be covered by the ETS) unless the State has submitted a State Plan and received approval from OSHA.  New Jersey, along with approximately half of all states, have an OSHA-approved State Plan.  For New Jersey and the other states with a State Plan covering State and local government employees, the ETS would apply. 

The ETS took effect immediately upon its publication in the Federal Register. The testing requirement for unvaccinated workers is scheduled to take effect January 4, 2022. Employers must be in compliance with all other requirements – such as providing paid time for employees to get vaccinated and enforcing masking for unvaccinated workers – on or before December 5, 2021.

Fifth Circuit’s Decision to Stay COVID-19 Vaccinate or Test Mandate

Legal challenges to the OSHA ETS have been filed in nearly every U.S. Circuit Court of Appeals. The lawsuits challenge whether OSHA has the constitutional and statutory authority to issue and enforce the ETS.

On November 6, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, temporarily stayed the ETS, which means that the ETS is temporarily suspended pending resolution of the case. On November 12, the Fifth Circuit reaffirmed its initial stay and ordered OSHA to "take no steps to implement or enforce the Mandate until further court order."

In reaching its decision, the appeals court found that the petitioners’ challenges to the mandate show a great likelihood of success on the merits. With regard to the challengers’ statutory challenges, the court agreed that OSHA likely exceeded its authority, concluding that the ETS is both overinclusive in its application to employers and employees across all industries and workplaces and underinclusive in that it does not apply to employers with 99 employees or less. As Judge Kurt D. Engelhardt wrote on behalf of the panel:

As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’” But the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.” Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address. (Internal citations omitted)

The Fifth Circuit also found the challengers’ Constitutional arguments to be persuasive, agreeing that the OSHA ETS likely exceeds the federal government’s authority under the Commerce Clause and encroaches on states’ police powers under the 10th Amendment. Additionally, the Fifth Circuit found that any harm a stay might cause OSHA “pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.” 

Sixth Circuit to Hear Consolidated Legal Challenges

On November 16, the Judicial Panel on Multidistrict Litigation conducted a lottery to select which federal court will hear the consolidated litigation of all the different appeals. The Sixth Circuit Court of Appeals, located in Cincinnati, Ohio, was selected. Notably, a majority of the judges that preside in the Sixth Circuit were appointed by Republican presidents.

A three-judge panel from the circuit will now be randomly assigned to hear the consolidated lawsuits. Assuming that the federal government asks the Sixth Circuit to reconsider the stay issued by the Fifth Circuit, the first decision the panel will likely make is whether to lift the stay and allow the ETS to be implemented pending the outcome of the lawsuits or keep it in place for the duration of the litigation. No matter what the Sixth Circuit decides, the issue is likely to ultimately end up before the U.S. Supreme Court.

Fate of COVID-19 Vaccine Still Uncertain

While OSHA has expressed confidence that the ETS will be upheld, it has temporarily halted implementation to allow the litigation to play out. “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,” the agency wrote in a statement posted on its website.

Although the Sixth Circuit will seek to act quickly, it will take weeks to achieve a final resolution. In light of these developments, employers will likely receive a reprieve from the approaching December 5 compliance deadline. The January 4, 2022 deadline may also be delayed depending on how quickly the legal challenges work their way through the legal system.

While the Fifth Circuit found that the arguments raised by those challenging the ETS do have merit, it is impossible to predict the final outcome at this stage. Therefore, it is imperative that employers stay on top of legal developments and be ready to act quickly should implementation of the ETS resume. To ensure you are prepared, we encourage you to contact a member of the Scarinci Hollenbeck Labor & Employment practice group at 201-896-4100.


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AboutCaitlin P. Dettmer

Caitlin P. Dettmer works with private and public sector clients on both state and federal labor and employment issues. She also has experience handling intellectual property matters, including trademark registration and infringement issues.Full Biography

AboutLawrence M. Teijido

Lawrence M. Teijido is a member of the firm’s Public & Education law practice group, where he works with public clients on a broad range of civil litigation matters.Full Biography

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OSHA Suspends COVID-19 Vaccination or Testing Rule – Next Steps for Employers

OSHA Suspends COVID-19 Vaccination or Testing Rule – Next Steps for Employers
Author: Caitlin P. Dettmer, Lawrence M. Teijido

As employers are likely aware, the Occupational Safety and Health Administration (OSHA) directive requiring employee vaccination or weekly testing is now on hold. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its initial stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). In light of the court’s ruling, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

For employers, the legal challenges to the OSHA ETS raise legitimate questions regarding whether it makes sense to continue preparing to comply with the directive. At this point, it is difficult to predict how the litigation will end, although a ruling by the U.S. Supreme Court seems very likely. While taking a wait-and-see approach may be reasonable, employers must be sure not to be caught totally unprepared should the directive survive legal scrutiny.

OSHA's COVID-19 ETS Impacts Private and Public Employers

As discussed in greater detail in a prior article, on November 4, 2021, the U.S. Department of Labor published an emergency temporary standard implementing the Biden Administration’s mandate that all employers with 100 or more employees require vaccination or, as an alternative, weekly testing. The ETS also requires that these employers provide paid time for employees to get vaccinated and recover from vaccination side effects, and mandates that all unvaccinated workers wear a face mask in the workplace.

The ETS applies to private employers with 100 or more employees firm- or corporate-wide. State and local government employees are generally exempt from the Occupational Safety and Health Act (and would not be covered by the ETS) unless the State has submitted a State Plan and received approval from OSHA.  New Jersey, along with approximately half of all states, have an OSHA-approved State Plan.  For New Jersey and the other states with a State Plan covering State and local government employees, the ETS would apply. 

The ETS took effect immediately upon its publication in the Federal Register. The testing requirement for unvaccinated workers is scheduled to take effect January 4, 2022. Employers must be in compliance with all other requirements – such as providing paid time for employees to get vaccinated and enforcing masking for unvaccinated workers – on or before December 5, 2021.

Fifth Circuit’s Decision to Stay COVID-19 Vaccinate or Test Mandate

Legal challenges to the OSHA ETS have been filed in nearly every U.S. Circuit Court of Appeals. The lawsuits challenge whether OSHA has the constitutional and statutory authority to issue and enforce the ETS.

On November 6, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, temporarily stayed the ETS, which means that the ETS is temporarily suspended pending resolution of the case. On November 12, the Fifth Circuit reaffirmed its initial stay and ordered OSHA to "take no steps to implement or enforce the Mandate until further court order."

In reaching its decision, the appeals court found that the petitioners’ challenges to the mandate show a great likelihood of success on the merits. With regard to the challengers’ statutory challenges, the court agreed that OSHA likely exceeded its authority, concluding that the ETS is both overinclusive in its application to employers and employees across all industries and workplaces and underinclusive in that it does not apply to employers with 99 employees or less. As Judge Kurt D. Engelhardt wrote on behalf of the panel:

As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’” But the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.” Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address. (Internal citations omitted)

The Fifth Circuit also found the challengers’ Constitutional arguments to be persuasive, agreeing that the OSHA ETS likely exceeds the federal government’s authority under the Commerce Clause and encroaches on states’ police powers under the 10th Amendment. Additionally, the Fifth Circuit found that any harm a stay might cause OSHA “pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.” 

Sixth Circuit to Hear Consolidated Legal Challenges

On November 16, the Judicial Panel on Multidistrict Litigation conducted a lottery to select which federal court will hear the consolidated litigation of all the different appeals. The Sixth Circuit Court of Appeals, located in Cincinnati, Ohio, was selected. Notably, a majority of the judges that preside in the Sixth Circuit were appointed by Republican presidents.

A three-judge panel from the circuit will now be randomly assigned to hear the consolidated lawsuits. Assuming that the federal government asks the Sixth Circuit to reconsider the stay issued by the Fifth Circuit, the first decision the panel will likely make is whether to lift the stay and allow the ETS to be implemented pending the outcome of the lawsuits or keep it in place for the duration of the litigation. No matter what the Sixth Circuit decides, the issue is likely to ultimately end up before the U.S. Supreme Court.

Fate of COVID-19 Vaccine Still Uncertain

While OSHA has expressed confidence that the ETS will be upheld, it has temporarily halted implementation to allow the litigation to play out. “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,” the agency wrote in a statement posted on its website.

Although the Sixth Circuit will seek to act quickly, it will take weeks to achieve a final resolution. In light of these developments, employers will likely receive a reprieve from the approaching December 5 compliance deadline. The January 4, 2022 deadline may also be delayed depending on how quickly the legal challenges work their way through the legal system.

While the Fifth Circuit found that the arguments raised by those challenging the ETS do have merit, it is impossible to predict the final outcome at this stage. Therefore, it is imperative that employers stay on top of legal developments and be ready to act quickly should implementation of the ETS resume. To ensure you are prepared, we encourage you to contact a member of the Scarinci Hollenbeck Labor & Employment practice group at 201-896-4100.