Does OSHA’s New Rule Have a Shot? Updates from the Fifth Circuit and Beyond

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Does OSHA’s New Rule Have a Shot? Updates from the Fifth Circuit and BeyondAs most employers already know, OSHA’s newly announced COVID-19 Emergency Temporary Standard (ETS) is set to take effect January 4, 2022, and will require, among other things, that workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly. You can read more on the nuts and bolts of the rule here. And, as predicted, the rule is already facing multiple challenges across the country. In the Fifth Circuit Court of Appeals, a number of petitioners, including supermarkets, staffing agencies, a restaurant group and others, filed suit challenging OSHA’s ETS on November 5, 2021 – the same day the rule was announced. Other petitioners have filed challenges in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits.

So What Happened?

The Fifth Circuit challenge argued that the ETS exceeds the scope of OSHA’s authority and that the rule is unconstitutional. The lawsuit asked the court to stay enforcement of the ETS pending review by courts, a request that is echoed in each of the lawsuits challenging the rule. On November 6, 2021 – within a day of the lawsuit’s filing – the Fifth Circuit issued a per curiam order staying the new rule, writing that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” The panel of three judges then ordered the Department of Labor to respond to the petitioners’ motion for a permanent injunction by 5 p.m. on November 8.

DOL Is Fighting Back

In its November 8 response (and an accompanying letter to the court), the DOL noted that it believes the petitioners request for a stay to be “premature,” pointing out that any harm cited by petitioners in their challenge is “months” away. The DOL also argued that the petitioners could not show that “their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” The brief states that “OSHA’s detailed analysis of the [ETS’s] impact shows that a stay would likely cost dozens or even hundreds of lives per day.” In contrast, challenges to the ETS argue that the administrative and financial burdens to comply with the rule are too high – under the rule employers could face fines of $13,653 per serious violation and up to $136,532 per willful or repeated violations.

The DOL’s November 8 response also argued that the stay was premature, particularly in light of the multiple challenges across the country, citing federal law (28 U.S.C. § 2112) that governs the procedure courts must follow when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” Under these circumstances, the cases must be consolidated and transferred to a single circuit court, which is chosen through a lottery process. The lottery is expected to take place on November 16, 2021.

So Now What?

In the meantime, the Fifth Circuit’s stay remains in place (so the immediate deadlines are up in the air for now). Even if a court lifts the stay, the timing for employers to comply with the ETS rule will be tolled accordingly, so you’ll have a little time. It is likely the stay will remain in place while the multidistrict litigation is pending, however you don’t want to get caught unawares if the ETS is back on. Employers should keep an eye on not only the Fifth Circuit, but whatever circuit is chosen by the lottery and continue with any plans for compliance already in motion. You should probably think about what steps you will need to take if the ETS moves forward — a policy, identifying your employees who are not vaccinated, and how you might implement a testing program — just in case you need them on short notice.