Court Blocks OSHA Vaccinate-or-Test Emergency Temporary Standard

A flurry of activity has arisen from the issuance of OSHA’s new Emergency Temporary Standard (ETS) addressing the COVID-19 pandemic. OSHA’s much anticipated ETS requiring certain employers to either require their employees to get vaccinated or undergo weekly testing was issued and became official Nov. 5, 2021, when it was published in the Federal Register.

Barely a day and a half after issuance of OSHA’s emergency vaccinate-or-test standard, a federal appeals court blocked it. A three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the ETS. The suit was filed on behalf of a group of private businesses, religious organizations, and Texas, Louisiana, South Carolina, Utah, and Mississippi.

The filed lawsuit argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in workplaces. Among the concerns raised in the lawsuit include:

• Questioning whether the “grave danger” standard has been met for general industry, given that earlier this year only the healthcare industry was considered to have met that threshold.
• Arguing that “grave danger” is not dependent upon the number of workers in a workplace, but rather, on an individual’s age and underlying health concerns.
• Concerns that employers will face workforce shortages if unvaccinated employees quit rather than receive a COVID-19 vaccination.
• Challenging OSHA’s authority to require employers to expend resources on the development and implementation of written compliance and reporting procedures beyond what the law authorizes under the circumstances.
• Disputing OSHA authority to issue an emergency standard on the basis that COVID-19 is a workplace-related hazard, when the risk of contracting the virus extends beyond the workplace.
• Stating that OSHA does not have the authority to issue an emergency standard for a communicable disease.

The Fifth Circuit decision states that the plaintiffs showed that the ETS poses serious statutory and constitutional issues, and that a stay of the ETS is appropriate. The Court will schedule a hearing on the matter after receiving filings from both the plaintiffs and the U.S. Department of Labor.

The release of the final rule has triggered other lawsuits across the United States, and legal experts anticipate that whatever the Fifth Circuit ruling is in this case will be appealed, eventually reaching the Supreme Court which will have the ability to overturn the ruling or let it stand.

It is also important to know that any cases brought in federal court about the OSHA ETS have no bearing on what is occurring at the state level regarding the Federal Contractor vaccine mandate, state mandatory vaccine requirements, or state COVID-19 regulations. Several lawsuits challenging the Federal Contractor vaccine mandate have been filed, but no ruling has been issued and that vaccine requirement remains in place. Therefore, if your company is in one of the states with a mandatory vaccine or regulation requirement, that requirement must be followed.

PRINTING United Alliance continues to follow all state regulatory issues.  For more information, or if you have questions on this or any other state regulatory program, please contact Marci Kinter, mkinter@printing.org; Gary Jones, gjones@printing.org, or Adriane Harrison, aharrison@printing.org. 

Follow the latest alerts on COVID-19 from the PRINTING United Alliance Government Affairs team online.

This piece was originally published on printing.org.