5th Circuit Extends Block of OSHA Vaccine Mandate

UPDATE: On November 16, 2021, the federal Judicial Panel on Multidistrict Litigation selected by lottery the 6th Circuit Court of Appeals to consolidate challenges to the Occupational Safety and Health Administration's emergency temporary standard (ETS). The 6th Circuit is considered an employer-friendly court; 11 of its 16 full-time judges were appointed by Republican presidents.

Author: Michael Cardman, Brightmine Legal Editor

November 15, 2021

A judicial order blocking the Occupational Safety and Health Administration (OSHA) from enforcing its emergency temporary standard (ETS) vaccination-or-testing mandate has been extended.

On November 6, the 5th Circuit Court of Appeals granted an emergency motion to stay the enforcement of the ETS while the court performed an expedited review of a lawsuit filed by multiple companies and the states of Texas, Louisiana, Mississippi, South Carolina and Utah.

After completing its expedited review, the 5th Circuit on November 12 reaffirmed its stay and ordered that OSHA take no further steps to implement or enforce the ETS while it reviews the plaintiffs' request for a permanent injunction.

The Court's Reasoning

The 5th Circuit considered four "traditional" factors governing a request for a stay established by the US Supreme Court in a 1987 ruling, and found that each one of them weighed in favor of granting a stay:

  1. Likely to win anyway - Calling the mandate both "overinclusive" (for failing to differentiate between the risks facing a lone security guard versus a meatpacker working shoulder to shoulder in a cramped warehouse) and "underinclusive" (for purporting to save employees with 99 or more coworkers from a "grave danger" in the workplace without attempting to shield employees with 98 or fewer coworkers from the very same danger), the 5th Circuit predicted the lawsuit had a "great likelihood of success."
  2. Irreparable harm to the plaintiffs - Without a stay, the 5th Circuit said the companies that filed the lawsuit would be "irreparably harmed" by lost or suspended employees; compliance and monitoring costs; a diversion of resources; stiff financial penalties; and more.
  3. No substantial injury to OSHA - The 5th Circuit said that "any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate."
  4. A stay is in the public interest - The mere prospect of the ETS "contributed to untold economic upheaval in recent months," according to the 5th Circuit.

The Road Ahead

It is unlikely that the 5th Circuit will have the final word on the ETS.

Lawsuits challenging the ETS have been filed in almost every other federal appellate circuit in addition to the 5th. Federal rules for multidistrict litigation allow OSHA to compel the pending cases to be consolidated and heard by a single circuit court, which is chosen by lottery. A federal panel is expected to announce which circuit will hear the case on November 16.

Whatever that appellate court ultimately decides, the losing party is almost certain to appeal to the US Supreme Court. The US Department of Justice (DOJ) has pledged to "vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review."

In a statement posted on its website, OSHA said it "remains confident in its authority to protect workers in emergencies" but pledged to follow the 5th Circuit's order to suspend implementation and enforcement of the ETS pending further developments.