Specifically referring to the requirement as a “mandate,” the court said the rule, instituted through the Labor Department, “grossly exceeds OSHA’s statutory authority,” according to the opinion, written by Judge Kurt D. Engelhardt and joined by Judges Edith H. Jones and Stuart Kyle Duncan.
“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,” they wrote.
The order also found that the ETS “imposes a financial burden upon [private businesses and organizations] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” It stated that the Occupational Safety and Health Act was not intended to allow the agency to make sweeping pronouncements on matters of public health.
The 5th Circuit's order criticized the ETS for failing to “account for differences in workplaces that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the [ETS] purports to address.” The order questioned whether OSHA has shown a “grave danger” and that the ETS is “necessary.”
The court concluded that parties seeking to stop the order are entitled to a stay because:
- they are likely to succeed on the merits and are suffering irreparable harm;
- a stay pending adequate judicial review of the underlying motion for a permanent injunction will not harm OSHA; and
- the public interest favors a stay.
The court halted the policy, scheduled to take effect Jan. 4, and ordered the Occupational Safety and Health Administration not to further implement or enforce the mandate. The Biden administration had asked the 5th Circuit to hold off on ruling until a judicial lottery can take place next week to consolidate several challenges to the mandate before a single appeals court.
The order compels OSHA to “take no steps to implement or enforce the [ETS] until further court order,” without any geographic limitation on that restriction.
What Does This Mean for OSHA's Vaccine Mandate?
This order is the second response from the three-member panel of the Fifth Circuit to the petitioners’ motions for a “stay barring OSHA from enforcing the [ETS] during the pendency of judicial review.” The order reaffirms the court’s initial stay on November 6 and will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”
A further order will eventually come from the federal judicial circuit that gets assigned the consolidated petitions to review the ETS pending in 11 of the 12 United States circuit courts of appeals. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation will conduct a statutorily required random selection to decide which circuit will hear the consolidated cases from around the country.
Who Ultimately Will Decide the Fate of the ETS?
Regardless of which federal circuit court “wins the lottery” and hears the consolidated petitions, employers should expect the Supreme Court of the United States to decide the ultimate fate of the ETS. The timing of when that will happen is unclear, but it will be at least weeks, if not months out. While OSHA could petition the Supreme Court to review the Fifth Circuit’s order rather than waiting on the lottery and ensuing proceedings at the circuit court level, OSHA is more likely to wait for the lottery, and another round of briefing. Many insiders and legal scholars believe that the Biden Administration is okay with a less than speedy final disposition of this matter so that businesses are incentivized to push for vaccinations and continue to prepare for the possible enforcement of the mandate while the courts sort it out.
Do I still need to comply with the December 6 and January 4 deadlines?
No. Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action. While the ETS is no longer in effect, the Fifth Circuit ruling has no impact on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Employers should continue to adhere to these requirements as applicable.
See also: Littler Mendelson's Fifth Circuit Enjoins OSHA from Enforcing Mandatory Vaccination or Test Emergency Regulations.
