After conducting an expedited review of OSHA’s Nov. 5 Emergency Temporary Standard (ETS), the Fifth Circuit Court of Appeals reaffirmed its initial stay order preventing OSHA from enforcing the ETS as planned starting January 2022.

The court made several interesting findings in its November 12, 2021, order, deeming the ETS “fatally flawed” and contradictory in its application; in its own words, both “overinclusive” – in that it applies to all employers and employees in all industries without differentiation – and “underinclusive” – as it fails to mandate protections for workforces of less than 100 employees. 

The court also found OSHA’s promulgation of the ETS “grossly exceeds [its] statutory authority.” The court’s opening remarks outlined the “emergency” nature of OSHA’s historic rulemaking abilities, noting “in its fifty-year history, OSHA has issued just 10 ETSs." Six of these 10 ETS mandates were challenged in court with only one surviving judicial scrutiny.

Related: Western states challenge vaccine mandates

Whether or not the Nov. 12 stay becomes permanent will depend on how things progress as pending legal challenges are consolidated and transferred to a single circuit court in accordance with federal law. The U.S. Court of Appeals for the Sixth Circuit has won the multi-district lottery and will hear consolidated complaints from the Fourth, Fifth, Sixth, Ninth, and Tenth Circuits.

There is also a strong possibility of further delays as it is likely that any final Court of Appeals ruling will seek U.S. Supreme Court review. Pending the outcome of these legal developments, OSHA has “suspended activities related to the implementation and enforcement of the ETS.”

California developments

The Fifth Circuit’s stay has also put things on hold in California.

Cal/OSHA’s Standard’s Board did not discuss changes to the existing Cal/OSHA COVID-19 ETS at board meeting Nov. 18. The board was to consider a verbatim adoption of the federal ETS, but instead will wait until more information is available pending the outcome of developing federal litigation on the issue.

In the interim, Cal/OSHA ETS adopted in June 2021 will remain in effect.

What's next?

With so much uncertainty surrounding the outcome of the vaccine mandate, impacted employers are encouraged to begin contemplating what steps may need to be taken if the ETS is allowed to move forward.

For example, what policies/procedures will need to be put into place to track vaccination status, how will testing protocols be implemented, and whether additional sick time will be provided for those who experience vaccination side-effects.

Related: Is politicization of vaccines counterproductive?

For the most up-to-date information visit OSHA’s website and review their recently published Frequently Asked Questions.

[Teresa McQueen is corporate counsel for Western Growers.]

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