In harsh rebuke, 5th Circuit extends stay of OSHA ETS rule

On November 12, a three-judge panel of the U.S. 5th Circuit Court of Appeals issued a 22-page order extending a “stay” (or hold) to keep the Occupational Safety and Health Administration (OSHA) from enforcing its new COVID-19 vaccine-or-testing rule “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” Opponents of OSHA’s emergency temporary standard (ETS) for employers with more than 100 employees had requested a “nationwide” stay, so the court’s orders seemingly have application beyond the 5th Circuit (which covers Louisiana, Mississippi, and Texas).

How we got here

OSHA issued the ETS on November 5. While it became effective immediately, employers weren’t expected to comply with most of the regulatory requirements until December 6 or the vaccination-or-testing rule until January 4, 2022.

OSHA’s ETS was immediately challenged by more than 26 states and employer groups in federal courts throughout the country. On November 6, a 5th Circuit panel issued the stay preventing the agency from enforcing its rule “pending further action by this court.”

The thrust of the petitioners’ challenge is that the ETS is constitutionally invalid and isn’t authorized by the Occupational Safety and Health Act (OSH Act), which created OSHA. In its latest decision, the three-judge panel seemed to suggest the petitioners had the better arguments.

ETS constitutionally ‘dubious,’ ‘fatally flawed'