Late on Friday, November 12, the Fifth Circuit Court of Appeals extended its Stay Pending Review of the controversial OSHA Emergency Temporary Standard (“ETS”) regulating COVID-19 in American workplaces. The Court specifically ordered: 1. That the ETS “REMAINS stayed pending adequate judicial review of the petitioners' underlying motions for a permanent injunction;” and 2. “That OSHA take no steps to implement or enforce the Mandate until further court order.” For now, OSHA is prohibited from taking any action to implement or enforce the COVID-19 ETS.

The court articulated multiple reasons why the ETS should be permanently enjoined. Under the law, an emergency regulation must be “necessary” to protect employees from “grave danger” of the exposure to “substances or agents determined to be toxic or physically harmful” – or “new hazards”—in the workplace. The court noted the ETS was likely unconstitutional under the Commerce Clause and the non-delegation doctrine. The Court also held it was likely that the ETS exceeded the proper administrative action OSHA may take under its emergency authority. Further, the Court was concerned with the one-size-fits-all nature of the ETS stating, “rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address…”

Recall that there are dozens of lawsuits across the country challenging the validity of the ETS, and while one circuit – the 5th circuit located in New Orleans – has ruled on the issue there are ten other circuits yet to. All petitions for review will be consolidated to one circuit court via a lottery system—the pick will be made on November 16th. That “lottery circuit” as the first order of business will determine whether to continue, amend, or lift the 5th Circuit’s Stay. That circuit court will then undertake a full judicial review of the ETS, and regardless of its decision, most believe the issue will ultimately be heard by the United States Supreme Court. Even if the circuit court proceeds rapidly a decision is not likely until the end of the year or into January. From there, one may expect the US Supreme Court to undertake an expedited review which may result in a final decision by the spring or early summer of 2022.

It’s not likely that a private-sector employer of 100 or more employees needs to comply with the December 6 and January 4 deadlines of the ETS since OSHA is currently barred from implementing or enforcing the ETS. Employers should be mindful that the 5th Circuit ruling has no impact on the Centers for Medicare and Medicaid Services (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Both of those mandates continue in effect and covered employers need to follow those requirements.

We will continue to send client alerts as developments warrant. We encourage clients covered by the CMS or federal contractor mandates to consult now with your Michael Best relationship attorney, and likewise, for those covered by the Stayed ETS to continue to plan and prepare for the ETS in the event it is found to be valid.