The U.S. Court of Appeals for the Fifth Circuit issued a stinging rebuke to the federal government’s efforts to impose a vaccine/testing mandate (“Mandate”) upon private employers with 100 or more employees. In a 22-page opinion issued on November 12, the three-judge panel barred, at least temporarily, the Occupational Safety and Health Administration (“OSHA”) from taking steps to implement its COVID-19-related Emergency Temporary Standard (“ETS”).
It is unlikely this will be the last court to rule on the Mandate, however, and the Mandate’s ultimate fate remains in question.
The court ruling is in response to an ETS announced by OSHA on November 4, mandating that private employers with 100 or more employees adopt policies requiring every employee to be vaccinated or submit to weekly COVID-19 testing and wear face coverings. The only exceptions permitted were for employees with disabilities or sincerely held religious beliefs that interfered with their compliance. Business groups and state attorneys general immediately filed actions seeking to invalidate the Mandate.
The Fifth Circuit Court of Appeals issued a temporary stay on the Mandate on November 6 and ordered immediate briefing and oral arguments. In its November 12 opinion affirming its earlier temporary stay, the appeals court found the ETS to be “fatally flawed” and “staggeringly overbroad,” and that it “grossly exceeds OSHA’s statutory authority.”
The appellate court criticized OSHA for reversing its earlier position that an ETS for a COVID-19 vaccine or testing mandate was unnecessary and inadvisable. It also found the ETS to be illogical, reasoning that if OSHA believed COVID-19 poses such a “grave danger” as to justify the unusual measure of a mandate upon all employers with 100 or more employees, it is ignoring the same grave danger for a worker whose company happens to have only 99 employees rather than 100.
Although the Fifth Circuit’s jurisdiction generally is limited to several states in the southern United States, its ruling temporarily invalidates the rule throughout the country. A chessboard of legal moves remains to be played out, however.
Although the Fifth Circuit is the first circuit court to issue a ruling on the ETS, challenges have been filed in almost every circuit court of appeals in the United States. Under federal law, when challenges to federal regulations are pending in multiple courts of appeal, a federal judicial panel is authorized to assign, at random, the case to one of the courts of appeal in which the challenges are pending. The randomly selected panel has the power to vacate prior rulings (such as the Fifth Circuit’s ruling) and issue its own ruling, which applies to the entire United States unless the Supreme Court accepts jurisdiction and reverses the decision.
The federal random assignment will take place November 16 or shortly thereafter. Thus, employers will need to continue to closely watch the issue and prepare for possible implementation of the ETS. Because of the compressed timeframe of the Mandate’s obligations, employers are advised to consult closely with counsel for breaking developments and to continue to prepare for compliance in a timely manner.
The Fifth Circuit’s ruling does not affect mandates covering federal employees, federal contractors and subcontractors, and most healthcare businesses certified to accept Medicare and Medicaid reimbursements by the Centers for Medicare and Medicaid Services. Those mandates, which do not include a testing option in lieu of a vaccine, remain scheduled to go into effect. Because those mandates affect businesses that have a voluntary connection to programs or contracts from which they receive federal funds, many legal experts believe those mandates have a stronger chance of withstanding court challenges.
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