Appeals court grants stay of OSHA ETS on COVID-19 vaccination and testing

New Orleans — The 5th U.S. Circuit Court of Appeals has halted the implementation and enforcement of OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, granting a stay Nov. 12.

In a 22-page opinion, the three-judge panel writes that the agency’s decision to include only workplaces with 100 or more employees in the ETS “belies the premise that any of this is truly an emergency.”

Among other considerations, the judges ruled that the promulgation of the ETS “grossly exceeds OSHA’s statutory authority.” They contend that the Occupational Safety and Health Act of 1970 wasn’t intended for OSHA “to make sweeping pronouncements on matters of public health” and that SARS-CoV-2 – the virus that causes COVID-19 – is an airborne virus that is “widely present in society (and thus not particular to any workplace).”

The decision is far from a final say, however. Appeals are pending in almost every appeals court in the country, and so a lottery will be used to determine which circuit will hear the appeal. That subsequent decision will likely be appealed to the Supreme Court.

On its website, OSHA says that although it remains “confident in its authority to protect workers in emergencies,” it has suspended activities related to the implementation and enforcement of the ETS “pending future developments in the litigation.”

OSHA published the ETS in the Nov. 5 Federal Register. The regulation was immediately challenged in the courts, with the 5th Circuit on Nov. 7 granting a temporary stay in the case brought by Louisiana, Mississippi, South Carolina, Texas, Utah, businesses, and religious and advocacy groups.

Under the ETS, covered employers had to develop, implement and enforce a mandatory COVID-19 vaccination policy – or develop a policy that gives employees the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees had a deadline of Jan. 4 to be fully vaccinated or begin undergoing weekly COVID-19 testing, but that date may change if OSHA ultimately prevails in court. Under the ETS, unvaccinated workers were required to wear a face covering while indoors or in a vehicle “with another person for work purposes.”

The ETS directed employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations.

According to an OSHA fact sheet, the ETS wouldn’t have applied to employees who work from home, work “exclusively outdoors” or don’t report to a workplace “where other individuals are present.”

During a Nov. 4 press conference, OSHA Deputy Assistant Secretary Jim Frederick said many employers already are complying with the requirements of the ETS. He also noted that the agency chose the 100-employee threshold because employers with that many workers typically have the “administrative capacity” to implement the requirements of the ETS “promptly.”

OSHA estimates that two-thirds of private-sector workers, or around 84 million, would have been covered under the ETS.

In June, OSHA issued its first ETS since 1983, for COVID-19 in the health care industry.