On November 23, 2021, the Occupational Safety and Health Administration (OSHA) filed an emergency motion in the U.S. Court of Appeals for the Sixth Circuit, seeking to dissolve the Fifth Circuit’s stay of OSHA’s recently issued vaccine mandate. Earlier this month, the Fifth Circuit Court of Appeals put a legal “stay”—or hold—on the OSHA Emergency Temporary Standard (“ETS”), calling it “unlawful” and “probably unconstitutional.” The consolidated cases challenging the ETS were subsequently assigned to the U.S. Court of Appeals for the Sixth Circuit.
In its emergency motion, OSHA argues it is likely to succeed against challenges to the ETS because OSHA reasonably concluded that the ETS is necessary to address a grave danger, and that the risk to employees in staying the ETS outweighs the harm to employers of compliance with the ETS and “would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects and tremendous expenses.” OSHA also argues that the Fifth Circuit employed a flawed statutory interpretation in arriving at its decision, and the Fifth Circuit’s “constitutional concerns” were mistaken.
OSHA also requests alternative relief from the stay, in the event the Sixth Circuit does not lift the stay entirely. To that end, OSHA argues that the Sixth Circuit should modify the stay so that the masking-and-testing requirement contained in the ETS can remain in effect while the ETS litigation is ongoing. OSHA also argues that employers should be left with the option to adopt COVID-19 policies, which would preempt any state and local rules limiting employers’ ability to require vaccination, masking, or testing of their employees.
OSHA is also seeking clarification as to the scope of the Fifth Circuit’s stay. The Fifth Circuit ordered OSHA to refrain from taking steps to implement or enforce the ETS. If the stay is to remain in effect, OSHA is requesting permission to provide pre-enforcement guidance to the public and take internal steps, such as drafting guidance and training employees on enforcement of the ETS, so that OSHA can be prepared to provide “accurate and consistent guidance and enforcement” if the stay is lifted and OSHA resumes implementation and enforcement of the ETS.