On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its COVID-19 “vaccine or test” Emergency Temporary Standard (ETS) (the “Mandate”) requiring employees of covered large employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask. The ETS included December 6 and January 4 deadlines for compliance. See our Update for a summary of the ETS. These deadlines are no longer in effect pending further court action as explained below.
OSHA Now Barred From Enforcing ETS
Immediately on 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,” the US Court of Appeals for the Fifth Circuit immediately intervened and imposed a temporary stay on OSHA’s enforcement of the Mandate. Then on Friday, November 12th, the Fifth Circuit court issued an order effectively nullifying the ETS without any geographic limitation. In their ruling, the court stated COVID-19 does not pose a “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”
Now, pending further review and other court action, employers with 100 or more workers are no longer required to comply with the Mandate since OSHA is now barred from both enforcing and implementing it. Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6th and January 4th deadlines are no longer in effect pending further court action. Employers should consult with their counsel before making any final determinations on this matter.
What Happens Next?
Various groups from around the country have filed multiple petitions for review of the ETS in 11 of the 12 U.S. Circuit Courts of Appeal. On November 16, 2021, all of these petitions for review will be consolidated before one of the 11 Circuit Courts via a statutorily required random selection process. Then the chosen court will ultimately determine whether the Fifth Circuit’s order of preliminary stay remains in effect. And in the end, it is quite possible the matter may ultimately be decided by the U.S. Supreme Court.
Conner Strong & Buckelew will continue to monitor these proceedings and will share them accordingly. Please contact your Conner Strong & Buckelew account representative toll-free at 1-877-861-3220 with any questions. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.
