ETS Tug-of-War Escalates After Stay Announced

When OSHA's Emergency Temporary Standard (ETS) was formally published on November 5, 2021, requiring that all employers with 100 or more employees have their workforce vaccinated against COVID-19 by January 4, 2022, it became apparent that a political tug-of-war would commence between the Biden Administration and primarily Republican states. The ensuing weeks have proven that to be all but true.

The Fifth Circuit Court of Appeals temporarily stayed the ETS on November 6, then continued the preliminary stay on November 12 after additional briefing. Among the Fifth Circuit's points of contention were the extent to which COVID-19 poses a "grave danger" to employees, and whether the ETS would actually be effective (or to what extent) in mitigating the proclaimed danger.

The Fifth Circuit concluded that the ETS did not consider the varying levels of risk posed to employees in the workplace, due to the fact that OSHA waited about 2 years to take any action, nearly 2 months to actually draft the analysis, and in the Court's opinion, failed a cost-benefit analysis. They ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."

OSHA is complying with the judicial rulings for the time being, as they issued a response to the November 12th stay issued by the Fifth Circuit:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

In order to address the litigation levied by entities opposed to the ETS, a random lottery was held on November 16 to determine which Circuit Court would hear the pending litigation. The Sixth Circuit Court was drawn, serving as another victory for opposers of the ETS. Of the 27 judges serving on the Court, 20 were appointed by Republican presidents dating back to Ronald Reagan. This includes 6 judges appointed by Donald Trump.

Despite these outcomes, it is unlikely that the Biden Administration will back down from its intent to follow through on the mandate. The next few weeks will provide crucial information in whether the ETS enforcement will come to fruition.