Join our November 18 webinar, Complying With New Federal Vaccine Mandates, for an in-depth discussion of the potential legal changes and their impacts on businesses.
Last Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its COVID-19 Vaccination Emergency Temporary Standard (ETS) effective the following day, Friday, November 5.
Almost immediately, four different state coalitions filed petitions to try to block the ETS from going into effect. There were (1) five states that petitioned for judicial review in the U.S. Court of Appeals for the Fifth Circuit; (2) seven states in the Sixth Circuit; (3) 11 states in the Eighth Circuit; and (4) three in the Eleventh Circuit. Various businesses and advocacy groups joined in many of these petitions.
These four cases will get consolidated, and then a lottery will be used to determine which Circuit Court will determine whether to issue a permanent injunction. Challengers of the ETS have a 10-day window to file their petitions to be included in the lottery.
However, nothing prevents one of these Circuits from acting to enjoin the ETS prior to the lottery – which is exactly what happened on Saturday, November 6. The Fifth Circuit issued a temporary stay on the ETS. In its four-sentence order (not counting footnotes), the Court stated, "There are grave statutory and constitutional issues with the Mandate." It then ordered the Biden Administration to file a response to the motion for a permanent
injunction by 5:00 p.m. on Monday, November 8 and the petitioners challenging the ETS to file any reply by 5:00 p.m. the next day. This tight briefing window suggests the Court will determine quickly whether to grant the petitioners’ request for permanent injunction.
However, because the Fifth Circuit acted prior to the lottery and consolidation of the four cases, there is no guarantee that the Fifth Circuit would be the court with final review. The Circuit Court chosen by the lottery will have the power to override any previous decisions of the other Circuit Courts. Moreover, there is always the possibility of Supreme Court review.
Recall that the ETS is a "soft mandate" as it allows
employers to grant their employees the choice of vaccination or regular testing/masking. As before the ETS came out, employers are still free to move forward voluntarily with this kind of soft mandate. We advise employers to become familiar with the requirements of the ETS should it be upheld and implemented.
Read our November 5, 2021 First Alert : It's Here! OSHA Releases COVID-19 Emergency Temporary Standard on Vaccination and Testing – What's Involved and What Should Employers Do?
You are also invited to join our November 18 webinar, Complying With New Federal Vaccine Mandates, for an in-depth discussion of the potential legal changes and their impacts on businesses.