On November 12th, 2021, the U.S. Court of Appeals for the Fifth Circuit continued the stay on the Occupational Safety and Health Administration‘s (OSHA’s) vaccine mandate and emergency temporary standard (ETS) and enjoined OSHA from enforcing the vaccine mandate. Although the court’s decision isn’t the final ruling on the ETS, the order marks its first significant challenge. Basically, the ruling prevents OSHA from implementing or enforcing the mandate as it stands. Earlier, the Fifth Circuit had issued a temporary stay on the ETS pending review.

Background of OSHA’s ETS

Previously, OSHA had announced on November 4 an ETS requiring employers with over 100 workers to institute a COVID-19 vaccination policy. Subsequently, on November 6, the Fifth Circuit temporarily stayed the ETS. The decision came in response to a petition filed by several special interest groups, businesses, and individual states. In addition, the court cited “grave statutory and constitutional issues” Involving the ETS.

Overview of the Ruling

Overall, the court stated that the ETS is “both overinclusive … and underinclusive.” In other words, the court ruled the ETS doesn’t account for varying levels of COVID-19 exposure as a sweeping mandate. Simultaneously, it doesn’t attempt to shield employees with 99 or fewer coworkers from the same exposure. In essence, the court ruled that OSHA’s vaccine ETS does not constitute a “delicate exercise” of an “extraordinary power” under Section 6 of the OSH Act.

Additionally, the court cited “grave danger” and “necessary” clauses within the OSH Act in its determination to enjoin OSHA from enforcing the vaccine mandate. In brief, Section 6 of the OSH Act states that an ETS must determine two things. Namely, that:

  • Employees are exposed to grave danger from substances or agents determined to be toxic or physically harmful.
  • Such an emergency standard is necessary to protect employees from such danger.

According to the court, OSHA has failed to prove that COVID-19 posed a grave danger specific to the workplace. Furthermore, it stated that COVID-19 was “non-life-threatening to a vast majority of employees.” In conclusion, the court ordered that OSHA is enjoined from enforcing the vaccine mandate until further court order.

COVID-19 Digital Resource Bundle

Since the laws and regulations surrounding COVID-19 in the workplace are constantly changing, employers may need help keeping up with weekly or even daily updates. After all, keeping compliance with COVID-19 evolving mandates keeps employees safe and helps employers avoid fines. To this end, Personnel Concepts created the COVID-19 Digital Resource Bundle. Overall, this bundle provides employers with critical COVID-19 resources that cover everything from workplace safety to managing work-from-home employees. In addition, Personnel Concepts will automatically update the bundle with new updates as they occur.