Bookmark and Share


Federal Circuit Court Decision Puts OSHA's COVID-19 Mandate On Hold

The U.S. Court of Appeals for the Fifth Circuit recently issued an order staying implementation of the federal Occupational Safety and Health Administration’s (“OSHA”) COVID-19 emergency temporary standard (“ETS”) requiring private employers with 100 or more employees to institute mandatory “vaccinate or test” COVID-19 policies. This stay order followed the Fifth Circuit’s earlier decision invalidating the ETS on multiple grounds.

Since challenges to the ETS have been raised in multiple federal courts, these lawsuits have been transferred to the Sixth Circuit for a consolidated, final ruling. In the meantime, OSHA has paused its implementation and enforcement of the ETS while the case makes its way through the Sixth Circuit – and, potentially, to the U.S. Supreme Court.

Summary Of The ETS

The new ETS, in conjunction with President Biden’s previous Executive Orders requiring mandatory vaccination policies for federal contractors and healthcare facilities, is aimed at increasing the proportion of workers in the country who are vaccinated.

If and when the ETS is actually enforced, its requirements will include the following:

Coverage. The new ETS applies to all employers with a total of 100 or more employees, with the exception of healthcare workplaces and federal contractors. The ETS also does not apply to employees who work from home or exclusively work outdoors.

Mandatory Vaccination Policy. Each covered employer must either: (1) institute and enforce a policy requiring all employees to be vaccinated against COVID-19, or (2) institute and enforce a written policy requiring employees to choose to be vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering at work.

Employee Vaccination Status. It is the responsibility of the employer to determine the vaccination status of each employee, including by requiring each vaccinated employee to provide acceptable proof of his or her vaccination status.

Employer Records. The employer must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. These records are considered confidential medical records.

Mandatory Testing For Unvaccinated Employees. An employee who is not vaccinated and reports at least weekly to a covered workplace must be tested for COVID-19 on at least a weekly basis. The employee also must provide documentation of his or her most recent test result to the employer within seven days following the previous test result.

Employee Notification Of COVID-19 Infection. An employer must require employees to promptly notify the employer if they receive a positive COVID-19 test result or are diagnosed with COVID-19. In such event, the employee must immediately be removed from the workplace and may not return until he or she receives an negative COVID-19 test result and meets the return-to-work criteria specified in the Centers for Disease Control’s (“CDC) “Isolation Guidance.”

Information Provided To Employees. Covered employers must inform each employee about COVID-19 vaccine safety, as well as OSHA requirements on retaliatory discharge, COVID-19 illness and death reporting requirements, and the availability of COVID-19 vaccination records.

The Fifth Circuit’s Decision

The Fifth Circuit’s order permanently enjoined enforcement of the ETS on multiple grounds, including constitutional concerns under the Commerce Clause, as well as issues with the nature of the threat posed by COVID-19 and the rule itself.

The court found that the rule was simultaneously too broad and too specific. As to the first, the Fifth Circuit stressed that “OSHA cannot possibly show that every workplace covered by the [ETS] currently has COVID-positive employees,” or that “every industry covered by the [ETS] has had or will have ‘outbreaks.’”

Further, the Fifth Circuit held that the fact that the ETS covers only employers with 100 or more employees “belies the premise that any of this is truly an emergency,” and that, therefore, “the under-inclusive nature of the [ETS] implies that the [ETS]’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”

Implications For Employers

While implementation of the ETS has been paused pending the Sixth Circuit’s (and possibly the U.S. Supreme Court’s) decision on the consolidated litigation, employers with at least 100 employees should remain alert and ready to move quickly if the ETS is reinstated.

Employers should also note that the Fifth Circuit’s decision does not affect any state-law vaccination mandates, or prevent employers that want to require employees to be vaccinated from implementing and enforcing their own mandatory vaccination policies (subject to potential medical and religious exemptions).

Likewise, the Biden administration’s federal COVID-19 vaccination mandates for healthcare employers and federal contractors are unaffected by the Fifth Circuit’s ruling and remain in place, at least for now.

* * *

We are continuing to monitor these developments closely. In the meantime, if you have any questions about the OSHA ETS, or about any other issue relating to COVID-19 or vaccination policies, please contact one of our experienced labor and employment attorneys.