The ever-evolving legal landscape of the OSHA Emergency Temporary Standard (“ETS”) mandating that employers with 100-plus employees require their employees be vaccinated against COVID-19 or undergo weekly testing changed again yesterday. On Tuesday, November 16th, the Judicial Panel on Multidistrict Litigation conducted a lottery and assigned the consolidated cases challenging the new OSHA mandate to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio. It should be noted that twenty of the 26 judges sitting in the Cincinnati Court were appointed by Republican Presidents.
Earlier this month, the Fifth Circuit Court of Appeals based in New Orleans, Louisiana, put a legal “stay”—or hold—on the ETS, calling it “unlawful” and “probably unconstitutional.” With the assignment of the cases to the Sixth Circuit, the newly appointed Court will rule on whether to extend or dismiss the existing Fifth Circuit stay. The Sixth Circuit will likely act swiftly. The matter will most assuredly end up in the United States Supreme Court. Given the timing and the requirements of those employers of the 84 million workers impacted by the OSHA Standard, it is expected that the Supreme Court will take expedited action to rule on the legality of the Standard.
It is also expected that Senate and House Republicans will introduce a joint resolution of disapproval seeking to nullify the ETS under the Congressional Review Act as soon as tomorrow, November 18, 2021.
As AED has been advising since the announcement of this new Rule, there will be many twists and turns with respect to the ETS and the litigation. Even though the mandate is in limbo, the best course of action is to be prepared to have to follow the ETS as early as December 4, 2021. AED is, of course, committed to keeping you informed.