November 16, 2021

OSHA Vaccine Mandate: Lawsuits in 5th, 6th, 7th, 8th, 11th, and D.C. Circuits; 5th Circuit Issues Stay

Background: Multiple Groups including 26 states filed petitions in the Fifth, Sixth, Seventh, Eighth, and D.C. Circuits, requesting a stay of OSHA’s Emergency Temporary Standard (ETS) which featured a requirement that employers with at least 100 employees adopt a vaccination policy that requires employees to be fully vaccinated or submit to at least weekly testing. The day after the ETS became effective, the U.S. Courts of Appeals for the Fifth Circuit issued a stay of the ETS citing “cause to believe there are grave statutory and constitutional issues with the Mandate.” In short, the Petitioners have argued the following: (1) the ETS violates the Non-delegation Doctrine (i.e. the ETS constitutes a major rule that requires specific legislative authority); (2) the ETS violates the Commerce Clause and the 10th Amendment of the U.S. Constitution; and (3) OSHA cannot justify a “grave danger” necessitating an ETS. On November 12, 2021, the Fifth Circuit affirmed the stay finding that the legal challenges to the ETS “show a great likelihood of success on the merits.”

What happens next: With multiple lawsuits in various federal judicial circuits, by federal statute, the cases will be consolidated and transferred to one circuit identified at random by the judicial panel on multidistrict litigation. The judicial panel on multidistrict litigation consists of seven circuit and district judges from different circuits that are designated by US Supreme Court Chief Justice John Roberts. The “circuit lottery” is expected to take place on or about November 16, 2021. Thereafter, the litigation will proceed as directed by the selected circuit.

Best Practice for Employers? While the ETS is stayed, Employers are not required to comply with the standard. However, the stay could be lifted while the lawsuits proceed on the merits. As well, the ETS may be upheld on the merits. If Employers can move in the direction of compliance with the policy and procedure terms of the ETS without experiencing significant economic hardship, they are encouraged to do so. This will allow for a smoother implementation of the requirements of the regulation should the stay be lifted and/or the ETS is upheld on the merits.

If you are an Employer and have questions and need assistance, please contact the lawyers at Cummins, Goodman, Denley & Vickers at (503) 476-8200.

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