On Saturday, November 6th a Federal Appeals Court issued an order temporarily blocking implementation of OSHA’s Emergency Temporary Standard on a nationwide basis citing potential “grave statutory and constitutional issues”.
We did a summary of OSHA’s ETS in our last article which can be found here. Friday, the same day it was published in the Federal Register, a number of parties filed suit in the Court of Appeals for the Fifth, Sixth, Seventh, Eighth and Eleventh Circuit against the vaccination mandate.
In particular, the challengers in the Fifth Circuit asked the Court to temporarily stop enforcement of the ETS until it could be reviewed by the courts. The petition asked the Court to find the ETS either exceeded the scope of OSHA’s authority or that it was unconstitutional. Within 24 hours, the Fifth Circuit Court issued a brief order staying the ETS until it could be fully reviewed by the Court. The reasoning stated by the Court was that “the petitioners gave cause to believe there are grave statutory and constitutional issues” with the ETS. The Court ordered the parties to submit today and tomorrow, further briefing about the validity of the ETS.
It is likely we will begin to see additional rulings from other federal appeals courts in the near future, some following in the Fifth Circuit’s footsteps and others finding the ETS constitutional. There will ultimately be a unifying judicial order having the final say on the matter. Whether that ruling comes from the U.S. Supreme Court of the multidistrict litigation panel is unknown at this time.
What Should Employers Be Doing Now?
At the moment, the outcome is uncertain. And, with so many challenges in a multitude of courts across the country, it is likely that a final binding and unifying determination will not be made for weeks or even months. However, as we have seen before, this can change rather quickly.
An employer’s best course of action is to familiarize yourself with the requirements of the ETS and how they affect your organization. Spend the coming weeks preparing your policies and procedures and craft a plan to implement the necessary changes if, and when, the stay is lifted and the ETS is put back in place. As we know, this can happen rather quickly, and the fines are steep for non-compliance.
The earliest effective date is December 5, 2021. For a brief summary of OSHA’s ETS see our previous post: OSHA’s Emergency Temporary Standard: Published. To see what your particular organization needs to do to prepare, contact Executive Legal Services.
It is important to note this information is provided for general purposes. It should not be relied upon as legal advice related to your particular facts or situation. For a discussion on how this impacts your organization, please contact Executive Legal Services.