5th Circuit Stays OSHA Vaccine Mandate

Author: Emily Scace, XpertHR Legal Editor

November 8, 2021

Citing "grave statutory and constitutional issues," the 5th Circuit Court of Appeals has granted an emergency motion to stay the enforcement of the Occupational Safety and Health Administration's recently published emergency temporary standard (ETS) mandating COVID-19 vaccination or testing for employers with 100 or more employees.

The federal appellate court issued the stay in a lawsuit filed by a group of companies and the states of Texas, Louisiana, Mississippi, South Carolina and Utah. Similar challenges have been filed elsewhere, including in the 6th, 8th and 11th Circuits.

According to Jonathan Segal, a partner with Duane Morris in the firm's Employment, Labor, Benefits and Immigration Practice Group and managing principal of the Duane Morris Institute, 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. The court that ultimately hears the case will decide the fate of the ETS, pending potential Supreme Court action.

Published in the Federal Register on November 5, the ETS's initial compliance deadlines were scheduled for December 5, with testing of employees who are not fully vaccinated against COVID-19 to begin January 4, 2022.

While noting that the ultimate status of OSHA's ETS remains unclear, Segal recommends that affected employers prepare as if the rule will take effect. Moreover, regardless of whether the ETS is ultimately upheld, employers are free to implement vaccine mandates and testing programs of their own accord, provided that their mandates are drafted appropriately.

The Equal Employment Opportunity Commission (EEOC) has stated in guidance that such programs do not violate Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) or related antidiscrimination laws as long as they are implemented in a non-discriminatory manner and provide a way for employees to request exemption on the basis of a disability or a sincerely held religious belief.

In addition, the roughly half of states that operate a federally approved occupational safety and health regulatory program, known as state-plan states, may opt to implement their own mandates even if the federal ETS is ultimately blocked. These state programs are required to be at least as effective as OSHA but may choose to implement stricter standards than their federal counterpart.