Circuit Court Blocks OSHA Emergency Temporary Standard, at Least for Now – Stay Tuned
Note: The FCSA team continues to get inquiries from our member schools about the vaccine mandate and its impact on employers. The information below provides some clarity. Thank you to Ed J. Pozzuoli, Tripp Scott; and Shane Wingo with BKS for this information.
UPDATED November 16, 2021
Until the final determination, this should be the last updated needed. I posted a similar update on LinkedIn this morning. If we are not yet connected on LinkedIn, click here for the update and connect with me.
On November 16, 2021, the 6th Circuit won the lottery to determine which circuit court of appeals will hear one consolidated legal challenge. The 6th Circuit is definitely one of the most conservative on the spectrum. In addition, OSHA has suspended all activities involving the implementation and enforcement of their ETS until the final decision is reached. IMPORTANT: even though this is trending toward a nullification of the vaccine/testing mandate), continue to prepare for the worst and hope for the best. I
- As of the week of November 8th, 2021, 27 states as well as several associations and private employers have filed suit against the Biden mandate as unconstitutional. The Federal Appeals Court has put a stay on the mandate blocking it from being enforced until their final decision is made.
- With that said, all employers (including charter schools) should prepare to comply with the vaccine/testing mandate effective Jan 4th should the appeal not be upheld.
- While the fate of the emergency temporary standards on COVID-19 vaccines and testing ( the ETS) remains unclear. Employers covered by the ETS should consider continuing to prepare for the ETS, as the stay could be lifted in the coming weeks and ETS compliance deadlines are quickly approaching.
Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021, emergency temporary standards on COVID-19 vaccines and testing (the “ETS”), on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, citing the “grave statutory and constitutional issues with the Mandate.” As previously reported, the OSHA ETS mandates that by January 4, 2022, all employers with 100 or more employees have its employees be vaccinated or subject to COVID‑19 testing requirements by January 4, 2022. The ETS also contains a host of other compliance obligations that employers would need to put in place by December 5, 2021, if the ETS survives legal challenge.
The day after the ETS was released, 26 state Republican attorneys general filed at least four separate lawsuits in the Fifth, Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeals. Business and industry groups also filed separate lawsuits challenging the ETS, including a suit filed in the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) by a group of companies led by BST Holdings, L.L.C. (the “BST Suit”).
On November 6, 2021, the Fifth Circuit issued a several-paragraph order in the BST Suit, temporarily staying the ETS pending further review. The court gave the federal government until November 8, 2021, to respond.
The court’s order is not a final ruling. The temporary stay is just that—a temporary halt to the implementation of the ETS. Under current federal court rules, the numerous cases filed against the ETS will be consolidated and heard by a single federal appellate court that will be chosen by a lottery system. Before the lottery is held, circuit courts can still rule on requests to halt the ETS, but the circuit court selected through the lottery system will have the ultimate power to lift the stay.
While the fate of the ETS remains unclear, employers covered by the ETS should consider continuing to prepare for the ETS, as the stay could be lifted in the coming weeks and the December 5, 2021, and January 4, 2022, ETS compliance deadlines are quickly approaching.