The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) for workplace vaccine or testing mandates on November 5, 2021. The next day, the U.S. Court of Appeals for the Fifth Circuit issued an order entering a stay of the mandate, citing concerns over “grave statutory and constitutional issues.”

On November 12, the Fifth Circuit issued an opinion reaffirming its stay. The court held that the ETS was overinclusive in its application to employees in a wide range of industries despite the different risks involved in the various workplaces. The court also found that the mandate was underinclusive, as the 100-employee cutoff was arbitrary and disregarded risky workplaces with only slightly fewer employees. Holding that the ETS “grossly exceeds OSHA’s statutory authority,” the court said that it did not need to reach the issue whether the mandate was unconstitutional. BST Holdings, LLC v Occupational Safety & Health Admin, No 21-60845 (5th Cir Nov 12, 2021). However, the court did also conclude that the ETS violates the Commerce Clause by regulating noneconomic activity and violates separation of powers because Congress did not clearly express intent to give OSHA the broad authority for issuing the mandate.

The Fifth Circuit ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” In a statement, OSHA said that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Occupational Safety and Health Administration, COVID-19 Vaccination and Testing ETS.

On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation randomly selected the U.S. Court of Appeals for the Sixth Circuit to hear the consolidated petitions regarding the OSHA ETS. The Sixth Circuit is conservative leaning and includes Michigan, Kentucky, Tennessee, and Ohio. Until the Sixth Circuit makes its determination on the consolidated lawsuits, the Fifth Circuit stay continues.

For details on the mandate, see this Legal Update contributed by Jonathan P. Kok and Allyson Ruth Terpsma of Warner Norcross + Judd.