the fifth circuit reaffirms the maintenance of the ETS; Then lose the jurisdiction of the case

Litigation usually unfolds at a freezing pace. Not this time.

The past

The much-publicized and controversial Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) was released on November 5, 2021 (see our November 5 article detailing the ETS). The ETS requires employees of covered employers to submit to COVID-19 vaccination or take weekly COVID-19 tests and wear a mask (the “warrant”).

On November 6 (the next day), a three-judge panel of the United States Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) temporarily “stayed” (meaning that he suspended) the warrant and requested an expedited briefing from OSHA (see our November 8 article explaining the temporary stay).

Last Friday, November 12, the Fifth Circuit issued an order in the nature of a preliminary injunction reaffirming his initial temporary stay, and indicating that he would consider canceling and making the ETS inapplicable after further judicial review. This result would put an end to ETS.

The present

On November 16, under the obscure lottery-based allocation rule referenced in our November 8 article, the case was removed from the Fifth Circuit and assigned to the United States Court of Appeals for the sixth circuit (which covers Tennessee, Kentucky, Ohio and Michigan). The Sixth Circuit was randomly selected from 12 of 13 US courts of appeal.

The future

What happens next? This, at this moment, is to be guessed.

The United States will ask the Sixth Circuit to reconsider the stay of the Fifth Circuit. The sixth circuit could lift the suspension and allow the implementation of the ETS pending the outcome of the dispute. Alternatively, the Sixth Circuit could deny the United States’ request to lift the suspension, which would keep the ETS on hold for now.

In either case, it is likely that the “losing” party will ask the United States Supreme Court (“SCOTUS”) to step in and make a final decision. It remains to be seen whether SCOTUS bypasses the typical litigation process and deals with this case quickly (and before the lower court decides on the merits). Thus, it is premature for any employer presumed to be subject to the ETS to consider the published employer’s obligations to be of no consequence.

Background to the issue of appeal at stake

While the Fifth Circuit is no longer in charge of this matter, it is instructive to revisit its order to see how, at least, a court views the ETS. The Fifth Circuit ordered OSHA to “take no action to implement or enforce the mandate until further court orders.”

Why did the Fifth Circuit decide the way it did? The essence of the answer, however, comes down to whether OSHA has the Constitutional and statutory authority to issue and enforce workplace rules that are as ambitious and cumbersome as the ETS. The Fifth Circuit obviously shares these concerns, as illustrated by a few extracts from its opinion:

  • “[I]In its fifty-year history, OSHA has issued only ten ETSs. Six were challenged in court; only one survived. The reason for the rarity of this form of emergency action is simple: the courts and the Agency have agreed for generations that “[e]extraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act, ‘therefore'[t]This power should be exercised with care, and only in emergency situations that require it.

  • “The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to provide Americans” with “safe and healthy working conditions and to preserve our human resources.” … It was not not – and probably could not be… intended to allow an occupational safety administration in the recesses of the federal bureaucracy to make sweeping statements on public health issues affecting every member of society…. ”

  • After the president expressed his displeasure with the country’s vaccination rate in September, the administration looked at the US code in search of an authority, or a ‘workaround, to impose a national mandate for vaccination The vehicle it landed on was an OSHA ETS OSHA authorizing statute allows OSHA to bypass typical notice and comment procedures for six months by providing for “a temporary emergency standard.” which takes effect immediately upon publication in the Federal Register “if it” determines (A) that employees are exposed to serious danger resulting from exposure to substances or agents found to be toxic or physically harmful or to new hazards, and (B ) that such an emergency standard is necessary to protect employees from such danger. “29 USC § 655 (c) (1).”

  • “[C]our courts have consistently observed that OSHA’s power to establish temporary emergency standards … “is an ‘extraordinary power’ that must be ‘exercised with care’ in only certain ‘limited situations’. … But the Mandate … is anything but a “delicate exercise” of this “extraordinary power”. … Quite the contrary, rather than a delicately handled scalpel, the Mandate is a one-size-fits-all hammer that hardly attempts to accommodate the differences between workplaces (and workers) which have little bearing on the various degrees of workers. susceptibility to the so-called “serious danger” [that] the Mandate claims to settle.


As it stands, here’s what we know: ETS, while clearly on life support, is not yet dead. It can experience a spectacular recovery.

If this is the case, covered employers should, in the meantime, heed the requirements of the ETS and be prepared to comply, possibly on short notice.

© 2021 Ward and Smith, Pennsylvania. All rights reserved.Revue nationale de droit, volume XI, number 320

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