As anticipated, the publication of the COVID vaccine Emergency Temporary Standard (ETS) by the Occupational Health and Safety Administration (OSHA) was greeted by a flurry of lawsuits. One federal appellate court thinks one of those lawsuits has enough merit to justify staying enforcement of the ETS pending a final decision by the court.
As discussed in a previous post, on November 5, 2021, OSHA published its highly anticipated ETS which requires employers with 100 or more employees to ensure that all employees, with certain exceptions, are vaccinated or, alternatively, wear masks in the workplace and are tested weekly. The ETS specifically states that it pre-empts state and local laws, including state laws which prohibit employers from requiring vaccinations.
However, the Fifth Circuit Court of Appeals, which sits in New Orleans, has issues a stay of enforcement of the ETS, finding that it implicates “grave statutory and constitutional issues.” The stay will be in effect “pending further action by this court.” The court ordered the government to file briefs by Monday at 5:00 PM and gave the petitioners until 5:00 PM Tuesday to reply. The U.S. Department of Labor has stated that it is fully prepared to defend the ETS in court.
The ETS will not be effective as long as the stay is in place. However the Fifth Circuit is expected to issue a decision soon, could uphold the ETS, and dissolve the stay immediately. Covered employers should prepare to comply with the ETS.
Other similar actions have been filed in other federal appellate courts. It is not clear how they will be decided or reconciled with the Fifth Circuit decision.
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