On Friday, November 12th, the U.S. Court of Appeals for the Fifth Circuit issued an order blocking enforcement of OSHA’s COVID-19 Emergency Temporary Standard (ETS). This ruling means that OSHA is not allowed to take any steps to implement or enforce the ETS mandate until further court order.

As a reminder, the ETS requires employers with 100 or more employees to ensure that all employees are either fully vaccinated by January 4, 2022, or be subjected to weekly COVID-19 testing.

What’s happening in the Courts?

In its ruling, the Fifth Circuit stated that the ETS Mandate “grossly exceeds” OSHA’s administrative authority.  It is important to note that the Court did not decide whether the mandate was constitutional or not. Instead, the Court temporarily froze OSHA’s authority to proceed with the ETS until further review.

To give some background on this ruling, decisions made by most federal administrative agencies, including OSHA, are subject to review by Federal Courts of Appeal. There are 13 appellate courts, broken down by regions that sit below the U.S. Supreme Court.

When the ETS Mandate was announced, Federal Circuit Courts of Appeal throughout the country used their power to challenge OSHA’s authority. Because the Federal Courts of Appeal all had similar challenges, the cases will be consolidated and heard in what is called a Judicial Panel on Multidistrict Litigation (MDL). The MDL will hold a lottery to randomly select which Circuit Court of Appeal’s challenge will be heard. Once the MDL rules on the case, all of the Federal Circuit Courts involved in the MDL (currently all Circuit Courts except for the 11th Circuit) will be bound by that decision. After that, it is likely that the issue will make its way to the U.S. Supreme Court, which will make a final ruling on the legality of OSHA’s ETS.

What is Next?

Currently, OSHA is barred from both enforcing and implementing the ETS. Therefore, the December 6th and January 4th deadlines are no longer in effect. However, it is important to note that the ETS may still take effect depending what happens with the MDL or Supreme Court and because of that, employers should continue to prepare to implement such mandate.  Moreover, the ETS has no impact on the vaccine mandates for federal contractors or healthcare workers and because of that, those deadlines remain the same.

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