On Friday, November 12th, 2021, the U.S Court of Appeals for the Fifth Circuit granted a motion issuing a temporary hold on the Occupational Safety and Health Administration’s (“OSHA”) recent Emergency Temporary Standard (“ETS”). The ETS, which went into effect on November 5th, 2021, would impose a vaccine mandate on employers with one hundred or more employees; force employees to either be fully vaccinated against Covid-19 or submit to regular testing and wear face coverings; and fine non-compliant companies. The Court of Appeals cited the OSHA Compliance Assistance Authorization Act of 1998 and Occupational Safety and Health Act of 1970 (29 U.S.C. §655(c)(1)) as the basis for its decision to question the ETS’s legality. The court’s order prevents OSHA from implementing or enforcing the mandate until a further court order.
What is an Emergency Temporary Standard?
Under the emergency provisions of the Occupational Safety and Health Act, OSHA is granted an extraordinary power in the form of an Emergency Temporary Standard. This power, exclusive to OSHA, is meant to protect workers from immediate workplace hazards by introducing new special regulations to be quickly implemented. While OSHA can implement this power as it sees fit, courts have repeatedly warned that it should delicately exercise the power only in emergency situations and when absolutely necessary.
According to 29 U.S.C. §655(c)(1), for an ETS to be lawfully enacted, it must:
- Address what substances, agents, or “new hazards” have been deemed to be toxic or hazardous in the workplace;
- Show that workers are being exposed, or have been exposed to such substances, agents, or “new hazards”;
- Show that exposures to these hazards place workers in “grave danger”; and
- Show that it is necessary to immediately stop employees’ exposure to these hazards.
Out of the ten ETS’s that OSHA has presented since its creation, six have been challenged in federal court, and only one has survived. The 5th Circuit Court of Appeals, in this case, concluded that OSHA failed to meet the high standards and that further judicial review would be required before a final decision can be made. As of now, OSHA has suspended the implementation and enforcement of the vaccine mandate until further court orders are issued.
The U.S. Court of Appeals for the Fifth Circuit stated in its decision:
On the afternoon of the Mandate’s publication, a diverse group of petitioners (including covered employers, States, religious groups, and individual citizens) moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation. Finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” we intervened and imposed a temporary stay on OSHA’s enforcement of the Mandate. For ease of judicial review, and in light of the pressing need to act immediately, we consolidated our court’s petitions under the case number captioned above.
Will the Covid-19 Vaccine Mandate be Lifted Permanently?
While the 5th Circuit Appeals Court has suspended OSHA’s enforcement and implementation efforts concerning the ETS due to possible statutory and constitutional issues, its opinion has only allowed for a temporary stay of the ETS. Pending further judicial review, the ETS could be reinstated, and companies with over a hundred employees could once again be required to impose vaccine requirements or other precautions. While the track record of past ETS’s indicates that it will be wholly struck down, the extraordinary circumstances presented by the pandemic may influence this decision.
How Can We Help?
Whether you are a business owner wondering how the mandate will affect you and your company or possibly a private or federal employee who is concerned about the mandate in any way, our team of experienced attorneys can help you. If you have questions concerning your rights, please feel free to contact us today!