The U.S. Court of Appeals for the Fifth Circuit has granted a stay of OSHA’s Emergency Temporary Standard (ETS), which was announced last Thursday, temporarily halting the requirement that employers with 100 or more employees implement policies mandating that workers be vaccinated against the coronavirus or provide documentation of a negative COVID-19 test at least every seven days.
In issuing its stay, the Fifth Circuit wrote that the lawsuit, brought by a group of employers (including a trucking company) and GOP-controlled state governments, raised “cause to believe that there are grave statutory and constitutional issues” with OSHA’s ETS. The three-judge panel (all Republican nominees) appear to believe that there is a serious problem with OSHA’s employer mandate. The Fifth Circuit stayed the ETS pending expedited review, and it ordered the parties to submit further briefing by the end of today and tomorrow about the validity of the ETS.
Even if the Fifth Circuit ultimately rules against OSHA and the Biden Administration, the legal battle over the ETS will continue. The Fifth Circuit could issue a narrow ruling, allowing OSHA to adjust its ETS. There are additional lawsuits already filed against the ETS in other circuit courts of appeal, so it is possible that a patchwork of legal rulings could result. Eventually, the Supreme Court may have to decide the issue of whether the ETS meets the statutory “grave danger” test or whether it is an example of executive outreach.
While the results of these pending legal challenges may take weeks or even months to become final, employers subject to OSHA’s ETS may want to continue planning for the ETS as if it is going to take effect. OSHA is likely to have little enforcement patience if the stay is lifted and the ETS is allowed to take effect. A first step is for employers to become familiar with the ETS’ requirements and to begin developing compliance materials. EMA has prepared FAQs to provide members with the most up-to-date information to navigate the ETS while awaiting the final judicial outcome.
Please note that truck drivers who work primarily alone and outdoors are exempt from the vaccine and testing mandates. Truck drivers may enter the workplace for bathroom breaks and still remain exempt but are required to wear masks when indoors. Although truck drivers are exempt from vaccine and testing requirements, employers must still count them as employees when determining whether they meet the 100 employee or more threshold. The ETS also preempts state and local laws that prohibit mandatory indoor mask use, employer inquiry of vaccination status and prohibitions against firing employees who refuse to test for COVID-19.