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Specifically, the court found the ETS to be overbroad because it defines covered employers not by the actual threat of COVID-19 transmission posed by a specific workplace or to specific workers, but broadly encompasses all workplaces based on the number of employees alone. In particular, the court noted that the ETS was “the rare government pronouncement” that is both overinclusive and underinclusive. Second, with respect to necessity of the ETS, the Fifth Circuit took issue with the attenuated relationship between the ETS’ vaccination requirements for all employers with over 100 employees and the alleged hazard of COVID-19. In concluding this, the Fifth Circuit highlighted OSHA’s prior statements made by the agency earlier in the pandemic that COVID-19 does not pose the kind of emergency that allows OSHA to take the extreme measure of an emergency temporary standard. Even assuming the ETS passes constitutional muster, the court went on to hold that COVID-19 was not the proper subject of emergency administrative action by OSHA.įirst, the court stated COVID-19 does not pose a grave danger because the virus-which is widely present and not particular to any workplace, and “non-life threatening to a vast majority of employees”-does not arise to such a toxic or physically harmful “substance” or “agent” contemplated by the OSH Act. Pending review, the ruling effectively nullifies the ETS as OSHA is barred from both enforcing and implementing it.įor an emergency regulation to be upheld, OSHA must show that the emergency regulation is necessary to protect employees from “ grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.” In a 22-page ruling, the court identified multiple reasons why the ETS should be permanently enjoined, including potential constitutional infirmity under the Commerce Clause and non-delegation doctrine. While the Fifth Circuit will not necessarily be the final word on the matter, the ruling signals that at least one federal appellate court has made a preliminary determination that the challenge to the ETS will likely succeed on the merits. The order was issued after an expedited briefing and in response to a petition filed by various employers, states, religious groups, and individual citizens seeking a temporary stay of the ETS pending judicial review to determine if a permanent injunction of the ETS should issue. Court of Appeals for the Fifth Circuit issued an order staying enforcement and implementation of the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 “ vaccine or test” emergency temporary standard (ETS). Of the 16 judges, 5 have been appointed by Democratic presidents and 11 have been appointed by Republican presidents. The Sixth Circuit has jurisdiction over federal appeals from the states of Kentucky, Michigan, Ohio and Tennessee. UPDATE: On November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the ETS (including the Fifth Circuit ruling) before the U.S. We’re ready for your tomorrow – because we’re built for it.Global Workplace Transformation Initiative.

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