HR Management & Compliance

In Harsh Rebuke, 5th Circuit Extends Stay of OSHA ETS Rule

On November 12, a three-judge panel of the U.S. 5th Circuit Court of Appeals issued a 22-page order extending a “stay” to keep the Occupational Safety and Health Administration (OSHA) from enforcing its new COVID-19 vaccine-or-testing rule “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” Opponents of OSHA’s emergency temporary standard (ETS) for employers with more than 100 employees had requested a “nationwide” stay (or hold), so the court’s orders seemingly have application beyond the 5th Circuit (which covers Louisiana, Mississippi, and Texas).

Source: Mehaniq / Shutterstock

How We Got Here

OSHA issued the ETS on November 5. While it became effective immediately, employers weren’t expected to comply with most of the regulatory requirements until December 6 or the vaccination-or-testing rule until January 4, 2022.

OSHA’s ETS was immediately challenged by more than 26 states and employer groups in federal courts throughout the country. On November 6, a 5th Circuit panel issued the stay preventing the agency from enforcing its rule “pending further action by this court.”

The thrust of the petitioners’ challenge is that the ETS is constitutionally invalid and isn’t authorized by the Occupational Safety and Health Act, which created OSHA. In its latest decision, the three-judge panel seemed to suggest the petitioners had the better arguments.

5th Circuit: ETS Constitutionally ‘Dubious,’ ‘Fatally Flawed

The 5th Circuit questioned whether OSHA (or even Congress) has the constitutional authority to “make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” Even if Congress would have the authority under the Commerce Clause, the appellate court noted the “nondelegation” doctrine would prevent it from delegating such sweeping powers to the agency.

Even setting aside the constitutional concerns, the 5th Circuit concluded the ETS was “fatally flawed” as both underinclusive and overinclusive and likely extends beyond the power Congress gave OSHA, even if it could make such a delegation. As the court explained:

On the dubious assumption that the [OSHA ETS Rule] does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both over inclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and under inclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to[]—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.

Given the constitutional and drafting concerns with the ETS, the 5th Circuit specifically found those challenging the new rule “show a great likelihood of success on the merits.”

Next Steps

The 5th Circuit will likely set a briefing schedule to address the request for a permanent injunction, which, if granted, would permanently prevent OSHA from enforcing the ETS. Such a ruling would certainly not be the end of any legal challenges, as there are numerous similar lawsuits in other jurisdictions, and any final decision by the 5th Circuit will undoubtedly be appealed to the U.S. Supreme Court.

Takeaways for Employers

While it’s too early to tell whether the court challenges will be successful in invalidating the OSHA’s ETS, the 5th Circuit’s latest decision certainly shows the rule will face significant legal hurdles.

For employers, though, the court ruling isn’t a license to ignore OSHA’s rule. Given the tight deadlines for compliance, you should continue preparing to be in compliance by December 6 and January 4. At the same time, though, be ready to table your efforts if the court grants the petitioners’ request for a permanent injunction.

Grant T. Collins is an attorney with Felhaber Larson in Minneapolis. You can reach him at

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