OSHA COVID-19 ETS – Legal Challenges

November 15, 2021
On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. Our blog post on the ETS is here.

Lawsuits challenging the legal authority of the ETS were filed immediately. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), anyone “adversely affected” by an ETS issued by OSHA may challenge it within 60 days in the appropriate federal appeals court. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS, pending briefing and expedited judicial review. 

On November 12, 2021, the Fifth Circuit reaffirmed its stay in a 22-page opinion, determining that the petitioners had demonstrated the required elements for a stay pending judicial review, as set forth below. The Court further ordered OSHA to “take no steps to implement or enforce the [ETS] until further court order.”

First, the Court held that the petitioners’ challenges to the ETS “show a great likelihood of success on the merits.” The Court held that the promulgation of the ETS “grossly exceeds OSHA’s statutory authority” under 29 U.S.C. § 655(c)(1), which authorizes OSHA to issue an ETS and bypass the period of public notice and comment only if the agency determines that: (a) employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards;” and (b) the ETS is “necessary to protect employees from such danger.” The Court determined that OSHA, for various reasons, has not demonstrated that the ETS meets the requirements of § 655(c)(1). The Court further noted that the ETS “raises serious constitutional concerns,” including that “it likely exceeds the federal government’s authority under the Commerce Clause” and implicates separation of powers principles because there is “no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority.” The Court also noted that the ETS was both improperly over-inclusive (because it covers employees with little-to-no risk of exposure to COVID-19) and improperly under-inclusive (because it does not cover employees who work for companies with fewer than 100 employees).

Second, the Court determined that denying a stay would cause irreparable harm to petitioners. Specifically, the Court noted that the ETS substantially burdens the liberty interests of covered employees who do not want to receive the COVID-19 vaccine, imposes non-recoverable compliance and other costs on covered employers, and infringes on the States’ police power over public health policy.

Third, the Court held that granting a stay would not harm OSHA, including because “[a]ny interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate.”

Fourth, the Court held that granting a stay is in the public interest, not only because the ETS causes “economic upheaval,” but also because the ETS raises constitutional questions and threatens individual liberty.

Judge Duncan wrote a concurring opinion emphasizing that OSHA does not have statutory authority to issue the ETS.

Numerous other petitioners have challenged the ETS in other federal appeals courts. It is expected that all legal challenges will be consolidated this week before one federal appeals court, and that federal appeals court will decide petitioners’ motions for a permanent injunction against the ETS.

As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.