THE SSP FIRM BLOG
The OSHA Vaccine Mandate: Where it Stands and Where it’s Headed
Friday, November 19, 2021
Authored by Joshua M. Smith and Matthew D. Soaper
As many know, the Biden Administration recently unveiled a vaccine mandate for all private employers with 100+ employees (the “Mandate”). The Mandate generally requires those private employers to obtain their employees’ vaccination status, and require COVID-19 testing each workweek for those who remain unvaccinated 1
Since the Mandate’s publication, lawsuits have been filed in all 12 federal circuit courts to prevent the Mandate’s implementation, and one of those circuit courts issued a “stay” of the Mandate’s enforcement pending further judicial review (essentially, telling OSHA that the Mandate cannot take effect until further notice). On November 16, 2021, these lawsuits were consolidated into a single circuit—the Sixth Circuit Court of Appeals (overseeing Ohio, Michigan, Kentucky, and Tennessee).
With the above whirlwind of events, we wanted to provide a brief explanation of what the Mandate involves, where it stands now, and where it is headed.
The Biden Administration’s Vaccine Mandate
Two months ago, the Biden Administration announced its intentions to issue a rule through the Occupational Safety and Health Administration (or “OSHA”) requiring that all employers with 100 or more employees ensure their workforce is fully vaccinated, or otherwise require unvaccinated workers to undergo weekly testing 2
Nearly two months later, OSHA followed through with this direction by publishing an “emergency temporary standard” (or “ETS”). Unlike traditional OSHA rulemaking, an ETS takes effect immediately prior to public comment and other rulemaking procedures. OSHA is permitted by statute to enact an ETS outside of its normal rulemaking procedures when employees are “exposed to grave danger from exposures to substances or agents determined to be toxic or physically harmful or from new hazards.”3
The ETS provides a number of significant new rules for employers to comply with, including:
- Ensuring that all employees must provide their employer with their vaccination status and, if vaccinated, provide proof of it through a vaccination card, medical records, or, if records cannot be provided, an employee attestation;
- Providing paid time off for both obtaining the vaccination and recovering from any side effects;
- Requiring that unvaccinated employees submit to weekly COVID-19 testing and masking;
- Maintaining records of all vaccination and testing information; and
- Implementing a written policy regarding COVID-19 vaccinations, testing, masking requirements that complies with the ETS;4
Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constitutent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. A designated deputy other than the random selector shall witness the selection.10
Most of the ETS provisions were scheduled to go into effect on December 6, 2021, while the weekly testing requirements were to begin on January 4, 2022.
Lawsuits are filed throughout the country against the Mandate
Immediately after the Mandate’s release, private businesses and states filed lawsuits throughout the country challenging the Mandate’s implementation.
On November 6, 2021, the Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) issued a short preliminary ruling that “stayed” the Mandate’s implementation and enforcement while briefing on the issue occurred.5 Six days later, the Fifth Circuit affirmed its prior ruling, finding that the Mandate “runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”6
It is important to note that this “stay” issued by the Fifth Circuit only applies to the ETS at issue. There are other vaccine mandates, including for federal employees, federal contractors, and health care workers, which remain in effect or scheduled to become effective.
The lawsuits are consolidated into a single case
In the meantime, due to the number and breadth of similar lawsuits pending, the U.S. Judicial Panel on Multidistrict Litigation (JPML) received and accepted a petition to consolidate the claims into one circuit court.7 The JPML was established by Congress in 1968, and has the authority to consolidate similar civil actions pending in two or more federal districts into one, which will decide common issues in the consolidated case.8 The JPML is composed of seven federal court judges, each appointed to the panel by the Chief Justice of the U.S. Supreme Court.9
On November 16, 2021, pursuant to the panel’s own rules, the JPML engaged in a process of randomly selecting a circuit court in which to consolidate the cases. Specifically, this involved effectively placing names in a hat (or in this case, a drum) and selecting a winner. Indeed, the process is spelled out in the JPML Local Rules:
Pursuant to this process, our very own Sixth Circuit Court of Appeals, located in Cincinnati, Ohio, was awarded the case. 11
The Biden Administration’s Mandate remains effectively on ice until further notice given the Fifth Circuit’s “stay” of the ETS. OSHA has conceded as much, publishing on its website that “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities relating to the implementation and enforcement of the ETS pending future developments in the litigation.”12
With that said, we fully expect that the Biden Administration will request relief from the Fifth Circuit Stay as the case proceeds in the Sixth Circuit. The Sixth Circuit will consider that request, and could decide to uphold the stay, modify it, or throw it out completely. In any event, that decision will be subject to appeal to the U.S. Supreme Court, should the Supreme Court accept review.13
No one can fully predict where the Sixth Circuit or U.S. Supreme Court will land on this Mandate. What we know now is that the Mandate’s enforcement is on hold until such a decision is made. Thus, Employers should remain vigilant and prepared to address any decision that comes down. As always, employers are advised to consult with counsel before making any decisions with respect to vaccine mandates.
Published 11/19/2021: If you have any questions about any of the information contained in this blog, contact Joshua Smith via phone: 513-533-6715 or by email at email@example.com, and Matthew Soaper via phone: 513-533-2487 or by email at firstname.lastname@example.org.
Advertisement Only. Content in this blog was accurate and researched as of the date published. This article is intended for general information only and not as legal advice. You should discuss specific details with your attorney to determine how legal developments may apply to your situation.
3. 29 USC § 655(c)
10. See JPML Rule 25.5 (Random Selection) https://www.jpml.uscourts.gov/sites/jpml/files/Panel%20Rules-Index_%20Copy-Effective-10-4-2016-Index-Update-10-2-2018.pdf
13. Supreme Court Rule 11 allows a petition for a writ or certiorari before judgment is entered upon a showing that the case “is of such imperative importance as to justify deviation from normal appellate procedure and to require immediate determination” in the Supreme Court. While this Rule was rarely exercised in the past, it has become more routine for the Supreme Court to exercise this authority in recent years. See also 28 USC § 2101(e).
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