On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation randomly assigned the U.S. Court of Appeals for the Sixth Circuit to hear legal challenges to the 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.
Ben Prager counsels employers in a wide array of labor and employment issues. Ben represents plaintiffs and defendants in actions involving trade secret misappropriation, breach of restrictive covenants, and wage-and-hour issues.
Fifth Circuit Stays OSHA’s New Emergency Temporary Standard
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.…