What is the Status of the OSHA Vaccine Mandate?

What is the bottom line?

As we discuss below, the future of the recent OSHA ETS is up in the air for now. This does not mean employers should halt plans for compliance. The Fifth Circuit’s opinion may not be indicative of how another circuit may ultimately rule. Cautious employers may want to move forward with plans for compliance while also closely monitoring the legal advancements.

Update as of November 17, 2021

Shortly after the Occupational Safety and Heath Administration’s emergency temporary standard (ETS) was published in the Federal Register on November 5, 2021, various individuals, covered employers, states, and other groups challenged its validity in federal appeals courts across the country.

On November 6, 2021, the Fifth Circuit Court of Appeals, which has jurisdiction over federal judicial districts in Louisiana, Mississippi and Texas, issued an opinion staying the ETS pending briefing and expedited judicial review, finding "cause to believe that there are grave statutory and constitutional issues with the mandate."

On November 12, the Fifth Circuit reaffirmed and extended its initial stay, holding that

1. Petitioners made a "compelling" argument that OSHA has no power to issue an ETS to address an airborne virus that is both widely present in society (i.e., not particular to any workplace) and non-life-threatening to most employees;
2. OSHA failed to demonstrate that all employees covered by the ETS are in fact exposed to COVID-19, as OSHA could not possibly show that every workplace covered by the ETS currently has, has had, or will have positive cases or outbreaks;
3. It remains unclear that COVID-19 poses the kind of grave danger that warrants the issuance of an ETS, considering statements from OSHA and the White House regarding the risks of COVID-19, the status of its spread, and previous lack of intention to mandate a vaccination; and
4. The ETS is not "necessary" to alleviate employees' exposure to COVID-19. The court found that the ETS is overinclusive as it fails to account for the differences among workplaces and workers that vary the degrees of employees' susceptibility to COVID-19, and underinclusive because it would exclude protections from vulnerable workers who work in companies that employ fewer than 100 employees.

In response to the Fifth Circuit’s ruling, OSHA issued a statement that it was suspending “activities related to the implementation and enforcement of the ETS” but provided that OSHA “remains confident in its authority to protect workers in emergencies…” and that it is suspending its activities “pending future developments in the litigation.”

However, the Fifth Circuit’s order will not be the final decision on this matter. Under federal law, when multiple lawsuits involving "one or more common questions of fact" are filed in separate courts, the petitions are consolidated and heard by one court chosen at random. In a process resembling a Powerball drawing, a dozen ping pong balls, each representing one court, were placed into a wooden drum. Lawsuits over the ETS were filed in almost all of the circuit courts, giving each of those circuit courts one entry into the lottery. On November 16, the winning ball was drawn in Washington, D.C., by a selector from a judicial panel that oversees multidistrict litigation.

The Sixth Circuit Court of Appeals, based out of Cincinnati, was selected via the lottery to hear legal challenges to the OSHA ETS. A three-judge panel from the Sixth Circuit will now be randomly assigned to decide whether to lift the stay issued by the Fifth Circuit. A majority of the judges currently presiding in the Sixth Circuit were appointed by Republican presidents.

Even if the Sixth Circuit weighs in quickly, it's likely the decision will be appealed and the litigation could continue for some weeks and months.

Ultimately, the case may conclude in the Supreme Court.

The Bottom Line

While the ETS’ future is up in the air for now, this does not mean employers should halt plans for compliance. The Fifth Circuit’s opinion may not be indicative of how another circuit may ultimately rule. Cautious employers may want to move forward with plans for compliance while also closely monitoring the legal advancements.

For more information, please contact Sarah Holland.