Editor’s note: NACDS president and chief executive officer Steven Anderson issued the following memo to NACDS members on further court action on the Binden Administration’s vaccine and testing requirements on employers.

In a further set-back to the Administration’s recently released COVID-19 vaccine and testing

Steven Anderson

requirements for employers with 100 or more employees, the U.S. Court of Appeals for the Fifth Circuit converted an earlier emergency short-term ruling halting these requirements into a longer-lasting temporary restraining order (TRO) late on Friday. Generally, the TRO would remain in place pending a final permanent ruling by the court.

In a unanimous decision, the three-judge appellate court panel issuing the TRO concluded that the new vaccine and testing requirements issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) earlier this month constituted an unlawful mandate, in gross excess of OSHA’s statutory authority.

The panel criticized OSHA for taking a one-size fits all approach, failing to consider COVID-19 transmission risk factors based a workplace differences.

The Fifth Circuit also concluded that OSHA’s conduct may violate the U.S. Constitution, in particular the Commerce Clause and separation of powers limits.

In addition, the Court found that OSHA’s regulations imposed a significant financial burden on employers and put them at risk for losing a large number of employees, which would be irreparably harmful.

Relying on these various conclusions, the Fifth Circuit determined that the necessary factors weighed in favor of issuing the TRO, and ordered “OSHA [to] take no steps to implement or enforce the Mandate until further court order.”

This order was issued despite the U.S. Government’s request that the Fifth Circuit delay its ruling until the process to consolidate multiple cases challenging the same rule be concluded, as there are now approximately a dozen similar lawsuits that have been filed in multiple circuit courts. It is unclear how the Fifth Circuit’s TRO may impact those other circuit courts reviewing the OSHA rule, as they are not bound by the Fifth Circuit’s opinion, and the circuit court case consolidation process.

NACDS will continue to monitor the Administration’s response to the Fifth Circuit’s TRO and developments in the other pending legal challenges to the OSHA rule.