Much uncertainty surrounds the OSHA Emergency Temporary Standard (ETS) of November 5, 2021, requiring unvaccinated employees of employers with 100 or more employees to receive a mandatory COVID-19 vaccination or undergo regular COVID-19 testing. By regular, they mean weekly.
For now, the OSHA ETS is on hold. Although HR bloggers are urging companies to continue their preparations to implement the mandate, the Fifth Circuit Court of Appeals issued a stay, which is tantamount to a cease and desist order. However, because several states and private companies launched suits challenging the OSHA mandate, the rules called for a consolidation under a Multidistrict Litigation (MDL) Panel rather than each district hearing its cases individually.
The ping pong ball has to do with how the judicial circuit court was selected. The 11 districts and the District of Columbia were each represented by a ping pong ball and the ball corresponding to the Sixth Circuit Court of Appeals was randomly selected and will weigh matters of law against the broad mandate to determine its legality.
Our friends at Fisher & Phillips summarized the status of this important and highly impactful administrative rule; their analysis is that the mandate is eventually headed to the Supreme Court, but in the meantime, the Sixth Circuit has some options in how to evaluate the case:
- Option 1: Randomly assign a panel of three judges to hear the matter. The composition of the Sixth Circuit (20 judges appointed by Republican presidents and six appointed by Democrats) could lead some to predict a decision to strike down the mandate, but that’s not entirely clear.
- Option 2: Full en banc decision. In this scenario, after the three-judge panel’s decision, the losing party could ask the 26-member Court to re-hear the entire case, complete with oral arguments.
- Option 3: Initial en banc decision. In this option, the Court could forego the three-judge panel review and proceed immediately to a full hearing by all of the justices. This is the most likely scenario.
The OSHA ETS is certainly a case to watch as we continue to grapple with an unprecedented situation that just won’t go away.