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The OSHA ETS Roller Coaster Ride

December 3, 2021

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

Since the publication of the OSHA Emergency Temporary Standards (ETS), it has been on a roller coaster ride through the courts. In the history of OSHA, there have been 10 ETS issued and six were challenged in court; only one survived the challenge.  The question now is whether a second one will survive a court challenge.

To give background on the current ETS, on November 5, OSHA published its ETS for employer mandated vaccination. The ETS covers employers over 100 aggregate employees including part-time and full-time employees (but not contractors) no matter their location and was to go into effect 30 days after publication of the OSHA ETS in the Federal Register. The publication is expected tomorrow and would have put these standards in effect December 5th.  The implementation for the mandate was delayed to January 4 with a full vaccination required by January 18th

A lawsuit was filed in the Federal Fifth Circuit Court of Appeals which issued a temporary injunction staying the ETS on November 6, 2021.  Specifically, the Fifth Circuit granted an emergency stay prohibiting enforcement of the rules for now, saying they raise “grave statutory and constitutional issues.” After deliberation that week, the Fifth Circuit upheld its temporary injunction.

In response, OSHA issued a statement that due to the Fifth Circuit stay against its COVID-19 Vaccine Mandate ETS, it will not implement or enforce the ETS “until further court order.”

With a number of lawsuits filed against the ETS in the various circuits, the Judicial Panel on Multidistrict Litigation (JPML) ran a lottery on November 16th, similar to the lottery everyone plays, and the ping pong ball came up with the Sixth Circuit Court of Appeals, which is based in Cincinnati and covers Michigan, Ohio, Kentucky, and Tennessee. The specific rules for this selection comes from the JPML’s Rules of Procedure Rule 25: “[T]he clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” No circuit gets extra entries for multiple lawsuits, and the drawing is witnessed so there’s no cheating.

The Sixth Circuit is a conservative court, and depending on the panel, will likely view the ETS with skeptical eyes.  There was a case already filed against the ETS in the Circuit, Bentkey Servs., LLC v. OSHA, No. 21-4027.  The lead case though is In re: MCP No. 165, Occupational Safety and Health Administration Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, case number 21-7000, in the U.S. Court of Appeals for the Sixth Circuit.  Also requested is a full Sixth Circuit hearing (en banc hearing) of the case as opposed to a three-judge panel which is the normal approach.  The reason for this request is that the Sixth Circuit is a majority Republican appointed judges (10 to 6, of which six were confirmed under the Trump Administration), which should give the plaintiffs a better shot at winning, or so they think.

Even if the Sixth Circuit denies the request for the en banc hearing, it could still do so after the three-judge panel makes a final ruling on the case.  After that, the case is likely to be appealed to the Supreme Court.

The government already filed an emergency motion to lift the stay.   No decision is expected until at least December 10th due to the briefing schedule set by the court.

Just to note, OSHA has used its ETS authority 11 times in its history. Under certain limited conditions OSHA has the authority to set an ETS when it is determined that a “grave danger” exists.  The current ETS states:

“For the first time in its 50-year history, OSHA faces a new hazard so grave that it has killed nearly 600,000 people in the United States in barely over a year, and infected millions more (CDC, May 24, 2021a). And the impact of this new illness has been borne disproportionately by the healthcare and healthcare support workers tasked with caring for those infected by this disease.”

This reasoning may not hold up given the fact that it could have been issued earlier in the pandemic and the “why now” and “100 employees” questions work against it.

The Sixth Circuit last heard a consolidated case against OSHA’s rules on the “Waters of the United States rule.”  Although the Supreme Court had reversed the ruling of the Circuit for other reasons, the Sixth Circuit stated in that case:

“What is of greater concern to us,” the court wrote, “is the burden—potentially visited nationwide on governmental bodies … as well as private parties—and the impact on the public in general.”

More importantly, the court stated that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”  In other words, there has to be a good reason for changing the status quo.  This reasoning is likely to be the base for arguments by the plaintiffs. 

There are definitely a number of issues with the ETS and the way it was justified.  Yet, the one ETS that did survive a challenge was heard by the Sixth Circuit.  So, nothing is a given.  It is a soap opera, and even though everything is on hold, it is still recommended to continue to prepare as if the ETS will survive.  The situation is very fluid – a roller coaster ride.

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