Fifth Circuit Stays OSHA COVID-19 Emergency Temporary Standard Pending Judicial Review
by Jordan Brickman
The Fifth Circuit found that the Occupational Safety & Health Administration (“OSHA”) exceeded its statutory authority in issuing the November 5, 2021, Emergency Temporary Standard (the “ETS”).[1] [2]
Although anticipated, the ETS’s publication frustrated employers, prompting many to seek court intervention to enjoin the enforcement of the ETS in all federal courts of appeal across the nation.[3] The following day, the Fifth Circuit sided with the petitioners. It found the ETS introduces “grave statutory and constitutional issues,” and ordered a temporary stay on OSHA’s enforcement of the ETS pending further briefing by both sides regarding the permanency of the stay during litigation.[4]
While the Court heard OSHA’s opposition to such a stay citing “grave danger” to public health,[5] it found OSHA’s emergency position unpersuasive.[6] On November 12, 2021, the Fifth Circuit ordered OSHA take no further steps to implement or enforce the ETS until further court order.[7] The Fifth Circuit’s ruling hinged on the comparable irreparable harm each party would experience if the ETS is not stayed.[8] Specifically, the Court found that OSHA would not experience harm because the ETS is likely unconstitutional, as it is both overbroad, burdening 2 out of 3 private sector employees, while also being under-inclusive, in leaving vulnerable employees unprotected solely based upon a set number of employees.[9] Conversely, the Court held that the ETS threatens to substantially burden the liberty interests of individuals, companies, and States, constituting enduring irreparable harm if not stayed pending the underlying litigation.[10]
Takeaway
The Fifth Circuit’s decision to stay the enforcement of OSHA’s ETS leaves many employees and employers in a state of uncertainty as they try to navigate the changing landscape. Although the deadlines for compliance set forth in the ETS are no longer in effect, it remains up to the discretion of individual employers whether they choose to implement the policies or wait until there is final judicial determination. Call the experienced Employment Law attorneys at Campbell Litigation today at 303-536-1833 to discuss your company’s options in these uncertain times.
[1] The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. OSHA ETS, Docket No. OSHA-2021-007, available at https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard , last visited November 18, 2021.
[2] BST Holdings, LLC. v. Occupational Safety & Health Admin., case number 21-60845, in the U.S. Court of Appeal for the Fifth Circuit. (5th Cir. 2021).
[3] Id.
[4] Id.
[5] Id. at 8.
[6] Id. at 5.
[7] Id. at 19.
[8] Id. at 17.
[9] Id. at 4.
[10] Id.