OSHA suspends mask mandate
The December 6 and January 4 deadlines are no longer in effect pending further court action
November 17, 2021
COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." The 5th U.S. Circuit Court of Appeals is blocking the OSHA vaccine mandate for employers of 100 or more people. The issue is expected to make its way to the Supreme Court.
In a 22-page ruling, the 5th U.S. Circuit Court of Appeals said the mandate was "fatally flawed," and barred the Occupational Safety and Health Administration (OSHA) from enforcing the mandate "pending adequate judicial review" of a motion for permanent injunction. Biden administration rule requiring large companies to mandate COVID vaccines for employees or impose weekly testing is "staggeringly overbroad" and "grossly exceeds [the Occupational Safety and Health Administration's] statutory authority," the federal appeals court said.
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. 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. Pending review, the ruling effectively nullifies the ETS as OSHA is barred from both enforcing and implementing it.
For 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." 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. 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.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. Court of Appeals for the Sixth Circuit. The Sixth Circuit has jurisdiction over federal appeals from the states of Kentucky, Michigan, Ohio and Tennessee.
What does this mean for the December 6 and January 4 deadlines?
Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action. While the ETS is no longer in effect, the Fifth Circuit ruling has no impact on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Employers should continue to adhere to these requirements as applicable. Notably, the vaccination deadline for covered federal contractors has been extended once again, and is now January 18, 2022.