On November 12, 2021, a panel of the Fifth Circuit Court of Appeals issued a 22-page order reaffirming the initial stay of a vaccine emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, affecting employers with 100 or more employees, is summarized here. The three-judge panel determined that OSHA did not have legal authority to issue the ETS. Among other concerns stated in the decision, the panel determined that OSHA’s mandate did not meet the high bar to issue an emergency standard because it had not sufficiently established a grave danger. Also, the panel found that the ETS’s vaccine or testing requirements were overbroad (by setting forth a standard requirement for workplaces regardless of the specific hazards present in individual workplaces) and underinclusive (by exempting many vulnerable workers in workplaces with fewer than 100 employees). Based on these and other legal infirmities, the panel held that the challenges to the ETS were likely to succeed on the merits, which supported the request for a stay. The panel also stated that the ETS would remain stayed pending adequate judicial review of the request for a permanent injunction and ordered OSHA to take no steps to implement or enforce the ETS until further court order.

It is not clear whether the panel’s decision is meant to be nationwide in scope. However, as OSHA has stated that it will not move forward with enforcement of the ETS, the effect of the decision is a nationwide stay. The fate of the litigation will become clearer this week once the federal court system settles on a single arbiter of the ETS challenges, which will soon be consolidated in one court of appeals. At least 16 petitions for review have been filed in 11 circuits. The Judicial Panel on Multidistrict Litigation will “random[ly] designate” one circuit from among those where petitions were filed within 10 days of the ETS’s issuance. 28 U.S.C. § 2112(a)(1), (3). That designation process is likely to occur on or about November 16.

Once the panel designates one circuit, the chosen court will consolidate and rule on any motions filed challenging the ETS. The ETS is scheduled to take full effect in January 2022.

Employers should continue to monitor developments in this quickly changing legal landscape and consult with experienced legal counsel regarding any questions about the status/implementation of the ETS.