Fifth Circuit’s Stay of OSHA’s Vax-or-Test ETS Remains in Place – For Now

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On November 12, 2021, a three-judge panel of the Fifth Circuit extended the temporary stay it had previously placed on the OSHA vax-or-test Emergency Temporary Standard, pending further judicial review of a request (one of many) to permanently enjoin OSHA from enforcing the ETS.  Describing the ETS as a scheme under which employers would be “deputized to participate in OSHA’s regulatory scheme…by forcing unwilling employees to take their shots, take their tests, or hit the road[,]” the Court described a litany of statutory defects with the ETS and questioned its constitutionality.

While the details of the opinion make for interesting reading and provide a potential roadmap for a permanent injunction of the ETS, the question for employers remains the same: Should we still prepare for the ETS to be implemented?  The answer to that question is the same as it was yesterday (and as we further explained in our November 9, 2021 blog post): likely so.  Although the ETS is temporarily stayed, the temporary stay is precarious.

Next week, on or before November 16, 2021, the various petitions challenging the ETS, filed across the country, will be consolidated into a single matter before a single federal Circuit Court of Appeals.  The challenges currently filed in 11 of the 12 Circuit Courts range from friendly challenges by unions in circuits they deem likely to uphold the ETS to challenges by businesses, States, religious groups, and individuals in circuits they believe likely to strike down the ETS.  The circuit that will ultimately decide the consolidated case will be chosen by a lottery pick as part of the multidistrict litigation (“MDL”) process.  The circuit selected in the lottery process will likely make the decision as to whether permanent injunctive relief is appropriate.  Following a decision from a Circuit Court of Appeals, we anticipate a request for review by the Supreme Court.  Frustratingly, it is not possible to predict the fate of the ETS at this point.

In other words, employers, stay tuned.