After 5th Circuit order, OSHA suspends implementation of vax-or-test mandate

On November 12, the U.S. 5th Circuit Court of Appeals issued an order reaffirming its November 6 initial stay as well as a further order forbidding the Occupational Safety and Health Administration (OSHA) from implementing or enforcing a vaccine-or-test rule for larger employers. For the time being, OSHA (somewhat surprisingly) has agreed to comply with the directives on a nationwide basis.

5th Circuit: ETS ‘fatally flawed’

In a sharp and stinging 22-page rebuke, the 5th Circuit called OSHA’s emergency temporary standard (ETS) for companies with at least 100 employees “fatally flawed” because it “is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the [ETS] purports to address.”

OSHA issued the following statement: “While OSHA remains confident in its authority to protect workers in emergencies, [the agency] has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The agency’s course of action should give some comfort to employers taking a wait-and-see approach.

Next steps

The 5th Circuit’s order gives employers subject to the ETS at least a temporary reprieve from complying with the vaccinate-or-test mandate. We stress “temporary” because nothing is certain about the order’s longevity