Fifth Circuit Continues Stay Against OSHA Vaccine Mandate ETS - American Society of Employers - Michael Burns

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Fifth Circuit Continues Stay Against OSHA Vaccine Mandate ETS

gavel with covid post-it note

As briefly covered in last week’s EPTW, the Fifth Circuit Court of Appeals issued a temporary stay on November 6, 2021, in response to OHSA’s Emergency Temporary Standards (ETS) outlining the vaccine mandate for employers with 100+ employees. This was a temporary stay pending review by the Court of legal briefs submitted by OSHA and the states challenging the federal vaccine mandate. On Friday, November 12, 2021, the Fifth Circuit Court of Appeals issued an order to continue its stay against the ETS stating the ETS “grossly exceeds OSHA’s …authority.”

The Fifth Circuit Court of Appeals challenged OSHA’s authority with its ruling writing the OSH Act was not “intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”  Other courts that are looking at appeals against the ETS will have to take into account that Circuit Court’s legal analysis in its decisions. This will now be in the Sixth Circuit Court of Appeals as we will explain below.

What does this mean for covered employers? In response to the Court’s stay, OSHA’s ETS resource page reported it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Until the appeals are settled, OSHA cannot enforce the ETS against employers choosing not to follow the vaccine mandate.

The ETS required employers that are over 100 employment size to establish a formal policy requiring employees to be vaccinated to work or choose to test for COVID weekly and mask up while in the workplace. Employers were to have this policy in place by December 5, 2021 and if choosing to make vaccination mandated, require employees to be fully vaccinated by January 6th, 2022.

Judicially the next step was to consolidate the various cases challenging the ETS and choose, by lottery, a federal circuit court to hear the consolidated case. The lottery was held on Tuesday, November 16th, and the Sixth Circuit was selected.

Legal challenges to the vaccination mandate were in courts across the country. It is estimated that at least 26 states have challenged the mandate and ETS across five federal appellate courts. The next step is that the Sixth Circuit will give notice to the public for comment submission. Regardless of the Sixth Circuit’s eventual decision, this case is expected to make its way to the U.S. Supreme Court. This will take weeks unless the U.S. Supreme Court is persuaded that it should take up the case thereby short circuiting the Appeals Court review.

Sean Egan, Michigan’s MIOSHA Director says they are following developments with the ETS and the courts. MIOSHA has determined that it will be enforcing the ETS once the dust settles from the court case assuming the ETS is still enforceable. Currently Egan is advising employers to continue to prepare for ETS implementation and compliance, but MIOSHA will comply with what OSHA requires.

In the meantime, and as ASE wrote last week in the EPTW, it is recommended covered employers at least continue to plan for ETS compliance given it will take some time to get employer policies and practices in place around the ETS. That said, ASE will be monitoring developments on this.

In today’s EPTW, ASE is conducting a poll question asking about what employers are doing given the Court issued stay on the ETS. We hope you can respond so we can monitor what employers are planning in response to these legal developments.



The National Law Review Volume XI, Number 317/Ogletree, Deakins, Nash, Smoak & Stewart, PC. Fifth Circuit Again Stays OSHA’s ETS… For Now (11/14/2021)

Seyfarth Shaw Legal Update. Impact f 5ht Circuits Extension on Employers’ OSHA ETS Compliance (11/15/2021)


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