As we discussed in our recent alert, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new emergency temporary standard (the "ETS") to protect workers from the spread of the coronavirus in the workplace. The ETS requires employers with 100 or more employees to establish a written mandatory COVID-19 vaccination policy or to adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
But a lot has happened in a few weeks. Following OSHA’s announcement, lawsuits challenging the ETS were filed in courts across the country. Within 10 days, at least 34 lawsuits were filed, covering all 12 circuit courts. In one of those cases, the Fifth Circuit stayed implementation and enforcement of the ETS nationwide, finding that OSHA exceeded its statutory authority, among other issues. To comply with the stay, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in that case.
Those developments may come sooner than you might expect. When multiple parties sue a federal agency to challenge an ETS in different circuits, as has happened here, a special judicial panel consolidates the cases and selects one court to hear them all. The selection is conducted, believe it or not, like the Powerball lottery—the panel randomly selects a circuit from a drum containing an entry for each circuit wherein a petition for review is pending.
On November 16th, the U.S. Court of Appeals for the Sixth Circuit was selected to hear the consolidated challenges to the ETS. The Sixth Circuit has established Case No. 21-7000 as the consolidated docket which can be used to track these cases. Earlier today, OSHA filed an emergency motion to dissolve the stay ordered by the Fifth Circuit.
Although it is unclear whether OSHA would keep the original December 5th and January 4th compliance deadlines, prudent employers within the scope of the ETS will proceed with their plans to implement their policies in the event the stay is lifted.