Courts Block OSHA ETS And Tennessee Ban On Mask Mandates

On November 12, 2021, the Fifth Circuit U.S. Court of Appeals extended its block of the Emergency Temporary Standard (“ETS”) that OSHA announced earlier this month. The court found that the ETS should be blocked pending a final decision. According to the court, OSHA had badly overreached, and had not met the high standard required for issuing an ETS, which does not require the usual procedural steps for issuing an agency regulation.

In response to the Fifth Circuit court’s ruling, OSHA stated:

“While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

In another Court of Appeals challenge, OSHA has invoked a U.S. Code provision, which provides that when an agency rule is challenged in more than one Court of Appeals, then one Court of Appeals is chosen at random to hear and decide the challenges. It appears this rule will be followed so that the challenges are all transferred to one Court of Appeals. It seems likely that will take place this week, likely on November 16 (Tuesday). It should be noted that a majority of

U.S. Circuit Courts of Appeal have judges appointed by Democratic presidents, so OSHA may still prevail in the litigation over the ETS, and employers may wish to keep preparing for the ETS as if it will take effect.

Meanwhile, on Sunday November 14, 2021, the federal court of the U.S. District of Middle Tennessee, in Nashville, issued an order temporarily staying implementation of the Tennessee statute that would prohibit schools from mandating the wearing of masks. The court cited confusion in the law as well as risks to state and federal funding and disabled children’ federal rights.

The District Court expects an expedited briefing process and quick decision. Meanwhile, the segment of the law prohibiting mask mandates in schools is blocked.