In our E-blast sent on Tuesday, November 9, we summarized the requirements of OSHA’s emergency temporary standard (ETS) addressing the COVID-19 health hazard, including its vaccine mandate. Our E-blast also informed you that on November 6, one day after OSHA published its ETS, the federal Fifth Circuit Court of Appeals issued an emergency temporary stay of the ETS pending further legal briefing and action. Just days later, on Friday, November 12, the same federal Fifth Circuit Court of Appeals issued a ruling reaffirming its emergency temporary stay, calling the ETS “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).” The ruling is available here.
Notably, the lawsuit heard by the Fifth Circuit Court of Appeals was not the only lawsuit filed seeking to stop OSHA’s enforcement of the ETS. Indeed, lawsuits were filed in all 12 regional circuit courts. When multiple lawsuits are filed involving one or more common questions of fact, the law allows for the consolidation of the lawsuits to be heard by one court chosen at random. In this instance, a lottery was held, and the court with the winning ticket was the Sixth Circuit Court of Appeals, a court which tends to lean conservative. It is the Sixth Circuit Court of Appeals which is now charged with issuing a final ruling on the enforceability of the ETS.
It is unknown how long it will take the Sixth Circuit Court of Appeals to hear the case, but, in the meantime, OSHA has published the following on its website:
“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." 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.”
We will continue to keep you updated as information regarding the enforceability of OSHA’s ETS develops.
