By: Philip A. Toomey, Esq.
This afternoon (November 16, 2021) the 34 separate challenges to the OSHA Emergency Temporary Standard (ETS) (pending in 12 different federal Circuit Courts of Appeal) were consolidated by the United States Judicial Panel on Multidistrict Litigation. The Sixth Circuit, sitting in Cincinnati, was randomly selected to hear all further matters related to the ETS. Any decision by the Sixth Circuit will be reviewed by the United States Supreme Court. Here is Leech Tishman’s best analysis and advice based upon the action today.
- Status of Stay on Enforcement. On Friday, November 12, 2021, the Fifth Circuit published a decision upholding its previous stay on enforcement. After a panel of three Sixth Circuit appellate judges is selected, the first order of business will be for the new panel to review the issue of a continued stay of enforcement. That panel will make a decision to either vacate the Fifth Circuit’s stay, modify it, allow it to remain in effect, or issue their own stay pending further litigation.
- What Has Been Stayed? The order last Friday prohibited OSHA from taking “steps to implement or enforce” the ETS until further order of the court. This puts covered employers in a difficult position. As we previously reported, there were two relevant dates. The first is December 5. The ETS requires that by this date, covered employers will have a written policy requiring either mandatory vaccination, or permissive vaccination and mandatory testing for unvaccinated employees. It also requires that by the same date, covered employers have a written compliance plan, and have communicated to employees both the policy and the plan. The second date is January 4, 2022. By that date, all covered employees must be fully vaccinated or subject to mandatory weekly testing. While technically the stay prevents OSHA from taking enforcement action against employers who have not complied by the dates, it does not vacate those dates. If or when the stay is lifted or modified, employers will be required to show time-sensitive compliance.
- Political Aspects. For those inclined to engage in the dubious indulgence of “reading political tea leaves,” of the 26 Sixth Circuit appellate judges, 20 were appointed by Republicans and the remainder by Democrats. About a third of the Circuit’s judges were appointed by the Trump administration. The numbers suggest a majority of any panel appointed to hear the petitions may have GOP affiliation.
- Possibility of Early Supreme Court Intervention. When the Fifth Circuit entered its emergency stay, the Biden administration could have immediately petitioned the Supreme Court for review. It publicly chose not to, saying that the January 4 date allowed adequate time to litigate the matter. OSHA still retains that option, but as more time passes it may become less likely to succeed. If the Sixth Circuit vacates, modifies the Fifth Circuit’s stay, or enters its own stay, any party may petition for Supreme Court review. However, as we previously reported, on October 29, 2021, the Supreme Court refused to review a denial of stay regarding Maine’s mandatory healthcare worker vaccination law. Justice Barrett’s concurring opinion, which was joined in by Justice Kavanaugh (both Trump administration appointees) articulated reluctance for emergency review of matters involving stays. A reasonable argument is the Supreme Court will permit whatever decision the Sixth Circuit enters (including simply allowing the Fifth Circuit’s order to remain by not reviewing it further) to control pending final resolution.
- Possibility of Transfer to Another Circuit. The United States Judicial Panel on Multidistrict Litigation was created by Congress to create uniformity and efficiency in situations such as the ETS challenge. Nevertheless, parties in the 34 petitions remain free to request a court to transfer their petition to somewhere other than the Sixth Circuit. While it is unlikely any circuit court will directly disregard the Panel’s order or permit such courthouse shopping or jockeying, it remains a remote possibility. However, if a court disregards the Panel order, it is anticipated the Supreme Court will intervene and require compliance.
- Employer’s Next Steps. Since it is unclear what (or when) the Sixth Circuit will consider any stay, we still believe the best position is for covered employers to take proactive steps. That will prevent “last minute” rush decisions or problems with implementation (especially during the holiday season). Proactive steps include, at a minimum, preparing (and having management finalize and approve) a draft written vaccination policy, compliance policy, and communication plan to be implemented if the stay is lifted, or the ETS is held to be valid. Covered employers should also prepare of a roster to document vaccination status of all employees (the roster is a confidential record of medical information). Covered employers should also remain vigilant to, and comply with, state OSHA rules, other mandated vaccination orders (including those applicable to federal contractors and healthcare workers), as well as all other applicable state and local health orders and mandates.
As always, we are here to help. Leech Tishman will keep you updated as matters progress.
Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.
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