On Friday, Nov. 12, the 5th Circuit Court of Appeals affirmed an earlier ruling blocking the Occupational Safety and Health Administration from implementing its Emergency Temporary Standard that requires employers with 100 or more employees to ensure their workers are vaccinated or undergo testing for COVID-19 at least weekly. This court ruling by a three-judge panel of the appeals court is an extension of a previous temporary stay issued Nov. 6 on a lawsuit challenging the ETS that was brought by several states and charged OSHA has exceeded its authority with the ETS.
Additionally, on Nov. 16, the numerous lawsuits filed challenging the ETS in court were consolidated by a Judicial Panel on Multidistrict Litigation. Under an expedited process used to facilitate prompt resolution of emergency rules, multiple lawsuits will be considered as a single case by the 6th Circuit Court of Appeals. As such the 6th circuit court now will have the authority to modify or lift the 5th circuit court’s stay of the ETS.
It now is expected the 6th circuit court of appeals will review the single consolidated case, and the outcome of that process likely will be appealed to the U.S. Supreme Court in a matter of weeks and will determine whether the ETS will be implemented by OSHA.
OSHA has placed the following language on its website that contains information about the ETS:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
NRCA will provide more information to members as it becomes available. View a summary of the ETS and links to related documents.