Following OSHA’s unveiling of the ETS on November 4, 2021, 26 states and several private employers and organizations filed lawsuits arguing that the rule is unconstitutional. On Monday, November 8, OSHA notified a judicial panel of the multidistrict legal challenges, in accordance with a federal law requiring agencies to notify the panel when one of their orders is challenged in more than two federal appeals courts. The DOJ subsequently moved to consolidate the lawsuits, filed in the Fifth, Sixth, Seventh, Eighth, Eleventh and D.C. circuits. As a result, the judicial panel is expected to hold a multi-circuit lottery to assign the consolidated cases to one of those six federal appeals courts on November 16, 2021.

This development follows the Fifth Circuit’s ruling on November 6, 2021, temporarily suspending the OSHA rule and citing “grave statutory and constitutional issues.” The Fifth Circuit ruling was in response to a lawsuit filed by a group of private companies who seek to have the new vaccine mandate voided. Circuit courts are entitled to rule on requests to halt the OSHA rule before the multi-circuit lottery is held; however, such stays can be lifted by the court that is ultimately selected to hear the consolidated case.

Given these legal challenges, the future of the OSHA ETS remains uncertain and a final resolution may not be reached for weeks. In the meantime, employers should prepare to implement the policies and procedures mandated in the ETS, given the potential risk associated with non-compliance if the rule goes into effect, as scheduled.

MBJ will continue to monitor these issues.