OSHA COVID-19 Emergency Temporary Standard- Litigation Update

As we have previously reported, 26 states (and numerous individuals, business and trade groups) have filed four separate petitions challenging the OSHA COVID-19 Emergency Temporary Standard. Five states, led by Texas, filed in the 5^th Circuit, which issued the stay order yesterday in New Orleans. 11 states, led by Missouri, have filed in the 8^th Circuit. As of Sunday morning (November 7, 2021), no action has been taken on that petition. Three states, lead by Florida, filed Friday in the 11^th Circuit, and seven states, led by Kentucky, have filed in the 6^th Circuit. As of Sunday morning, no action has been announced in either of those cases. Each of the petitions have both similarities and differences describing “how” the ETS is defective and should not be enforced.

Under rules adopted in 1988, petitions against a federal agency filed in different circuit Courts of Appeals are managed by the Judicial Panel on Multidistrict Litigation. The petitions will be consolidated and heard by one circuit which is chosen by lottery. The 5^th Circuit’s action to stay taken yesterday, if the case is transferred to another circuit, can be reviewed after transfer. Any stay can be extended or vacated. If the 5^th Circuit is chosen by lottery, whatever further decision it reaches on the issue of the stay (probably by Wednesday or Thursday) will remain in effect pending final review and disposition of the case.

There is no word on when the Judicial Panel will conduct the lottery. We will update these alerts as new developments occur.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.