Wait – What Is Going On With the Vax-or-Test ETS?!!

By Fiona W. Ong and Parker E. Thoeni - Shawe Rosenthal LLP

November 9, 2021

Is it in effect or not? Do employers have to comply or not? Yes, everyone is confused. So here’s a quick overview of the very messy situation.

As you all undoubtedly know by now, on November 4, 2021, the Occupational Safety and Health Administration issued the promised/threatened Emergency Temporary Standard compelling employers with 100+ employees to require employees to be either (1) vaccinated or (2) subject to weekly testing and face covering mandates. The ETS took effect on November 5, although it set a December 6, 2021 compliance deadline for everything but the testing requirement, which has a January 4, 2022 deadline.

Now, anyone who thinks they may be adversely affected by an emergency temporary standard (or a final one, for that matter) can file a petition for judicial review in the U.S. Court of Appeals for the Circuit in which they are located. Unsurprisingly, many petitions challenging the vax-or-test ETS were promptly filed – so far in six different federal circuits. (Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. circuits, if you’re really interested).

On Saturday, November 6, the U.S. Court of Appeals for the Fifth Circuit (considered one of the most conservative courts) issued a temporary stay of the ETS. It is not entirely clear whether the stay applies only in the Fifth Circuit (covering Texas, Louisiana and Mississippi – although South Carolina and Utah tagged along on the petition as well) or nationwide, although most commentators seem to think it is nationwide. The Fifth Circuit requested the government to respond to the emergency stay by Monday, November 8, and gave the plaintiffs until Tuesday, November 9, to respond to the government’s response. The Fifth Circuit will then decide whether to enjoin the ETS from ever taking effect. But wait – there’s more!

In the meantime, the Biden administration has invoked a procedure under which all the federal petitions for review in all the various circuits will be consolidated before a single court, which will be selected by a lottery. Yes, they will literally draw the name of the winning court out of a drum, under the rules of the Judicial Panel on Multidistrict Litigation. Each circuit gets one entry, regardless of the number of petitions filed in the district (so you cannot stack your chances of winning a particular circuit by filing more cases there). This selection process is supposed to take place before November 16. So regardless of what the Fifth Circuit decides to do, the winning court (which currently has a 1 in 6 chance of being the Fifth Circuit) could throw out the Fifth Circuit’s action and come to a different decision regarding the ETS.

And of course, no matter what any federal Circuit court says, the U.S. Supreme Court will undoubtedly be asked to intervene or review.

So, yeah, it’s a mess and no one knows exactly what is going to happen. But the Biden administration optimistically is telling employers that they should still go ahead and prepare to meet the compliance deadlines. And if the courts agree, there’s a lot that needs to be done.

(And to that end, our firm is doing a complimentary one-hour webinar this Friday at 1:00 p.m. Eastern, to explain the ETS and provide guidance to employers on compliance. If you’re one of those employers who wants to stay ahead of the game, you can register here. And if you’re a little more laid back, well, enjoy your Friday lunch without us!)