On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published its Emergency Temporary Standard (“ETS”) on the COVID-19 Vaccine Mandate for employers with 100 or more employees. We drafted an article with a short list of need-to-know details for employers available on our website.
As expected, opponents of the ETS wasted no time challenging the ETS through litigation. On November 6, the U.S. Court of Appeals for the Fifth Circuit, prompted by a petition from the states of, Texas, Louisiana, Mississippi, South Carolina, Utah, as well as various companies and individuals, issued a brief order staying the ETS nationwide pending further court action. The Fifth Circuit Court reasoned that the petition gave cause to believe there are “grave statutory and constitutional issues with the Mandate” requiring the court’s consideration. On November 12, the Fifth Circuit reaffirmed the stay pending “adequate judicial review.” The order included a directive that OSHA “take no steps to implement or enforce the Mandate until further court order.”
Challengers have initiated over 30 cases in federal circuit courts throughout the country. However, federal rules for multi-circuit litigation require that these types of cases (i.e., substantially similar cases arising from the same set of facts) be consolidated into one case put before one court, with the presiding court to be decided by a random lottery.
On November 16, 2021, the Judicial Panel on Multidistrict Litigation chose the U.S. Court of Appeals for the Sixth Circuit to preside over the case. Notably, the Sixth Circuit is considered one of the more conservative federal appeals courts, featuring 11 Republican-appointed judges and 5 Democratic-appointed judges. The Sixth Circuit has not issued a briefing or argument schedule in the matter, so a ruling is likely not imminent. Even then, once the Sixth Circuit issues a ruling, that ruling may be appealed to the Supreme Court.
Ultimately, this stay means companies are not currently required to comply with the ETS by the deadlines OSHA set forth, subject to change. OSHA has acknowledged as much, issuing a statement that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. To be safe, employers subject to the ETS should carefully monitor any legal developments and continue to make contingency plans as the cases slowly unfold in the court system.
We will continue to monitor these challenges and provide updates as changes arise. If you have questions regarding the above or any other employment-related concerns, please contact Michael S. Kernstock at firstname.lastname@example.org or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.