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OSHA’S Emergency Temporary Standard - Where Are We Now?
On Saturday, November 6, 2021, only one day after the OSHA ETS was published in the Federal Register, the United States Court of Appeals for the Fifth Circuit issued an emergency stay of OSHA’s ETS regarding vaccinations pending further legal briefing from the Court. On November 12, 2021, the Fifth Circuit reaffirmed the initial stay after further briefing and expedited review. The Fifth Circuit’s order stayed the enforcement and implementation of OSHA’s ETS and appears to have a nationwide impact. On November 12, 2021, OSHA posted the following on its website: “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.” See OSHA’s COVID-19 Vaccination and Testing ETS.
The Fifth Circuit may not have the final word on this issue. Legal challenges to OSHA’s ETS have been filed in 11 of the 13 federal circuits, which triggers the multi-circuit “lottery” provisions of 28 U.S.C. § 2112(a). Under this federal statute, the Judicial Panel on Multidistrict Litigation will consolidate the appeals into one case by assigning them to a randomly selected federal appellate court. This “lottery” is expected to take place today, November 16, 2021. The federal appellate court that is selected to handle the consolidated cases will have the authority to continue, revise, or lift the Fifth Circuit’s stay.
At this time, it is difficult to predict whether the stay will be lifted or remain in place. If the Fifth Circuit retains jurisdiction over the case, the stay is likely to remain in place. If the consolidated cases get assigned to a less conservative federal circuit, there is a chance the stay will be lifted. In any event, OSHA’s ETS is likely headed to the United States Supreme Court for review.
Until the consolidated cases get randomly assigned to a federal appellate court through to multi-circuit lottery, we recommend that employers continue working to comply with OSHA’s ETS regarding vaccinations in case the Fifth Circuit’s stay is lifted by another federal appellate court. We hope to have a better sense of what is in store for OSHA’s ETS after the multi-circuit lottery is conducted.
Please stay tuned for information about further developments.