The fate of the Occupational Safety and Health Administration’s landmark Emergency Temporary Standard on COVID-19 vaccination is in the hands of the Sixth Circuit—for now. In this LawFlash, we walk businesses through the legal challenges to the Emergency Temporary Standard, how they may unfold, and what businesses may wish to do in the interim.
Since its publication, the Emergency Temporary Standard (ETS) has only been in effect for a single day. The Occupational Safety and Health Administration (OSHA) published its ETS on November 5, 2021 (our prior LawFlash summarizes the sweeping ETS covering over 84 million workers). The very next day, the US Court of Appeals for the Fifth Circuit issued a temporary stay of the ETS, followed, on November 12, by a permanent stay of the ETS pending judicial review of the underlying motion for a permanent injunction. OSHA has acknowledged the stay on its website, explaining that while it remained confident of its authority to issue the ETS, OSHA had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Finally, in an effort to consolidate the multitude of challenges to the ETS (filed in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and DC Circuits), the Judicial Panel on Multidistrict Litigation held a lottery on November 16 to randomly select an appeals court to hear all of the appeals. The Sixth Circuit emerged as the “winner” and the ETS remains there—at least until it makes its way to the US Supreme Court.
Now that we know what court controls the soon-to-be consolidated legal challenges, the next steps are coming into clearer focus. But in the face of continuing uncertainty over whether the ETS will survive, businesses may wish to continue planning—for example, collecting information about their employees’ vaccination status and developing ETS-compliant policies—so that they are prepared if and when the stay is lifted.
THE STAY
Sixth Circuit Three-Judge Motions Panel
The main question in the near term is whether the Sixth Circuit will stay (or maintain the Fifth Circuit’s stay of) the ETS pending the full appeal on the merits.
For the lead case that was originally filed in the Sixth Circuit, Bentkey Servs., LLC v. OSHA, No. 21-4027, the Sixth Circuit had already issued a briefing schedule on the stay requested in that case, to be completed by November 22. In addition, the federal government could soon file a motion asking the Sixth Circuit to lift the Fifth Circuit’s stay. If it does, we expect that the Sixth Circuit will again issue a briefing schedule on that motion. The three-judge motions panel of the Sixth Circuit will then issue its ruling on the stay, perhaps before the end of the month.
Many judges on the Sixth Circuit have expressed misgivings about administrative agencies’ claimed authority to adopt far-ranging policies. Unless the three-judge motions panel is unrepresentative of the broader court, it is likely they will keep the stay in place based on concerns about the ETS similar to those that the Fifth Circuit identified. Of course, this is just a “best guess”—the motions panel could also lift the stay.
Sixth Circuit En Banc Review
In an unusual move, on November 17, some of the existing petitioners in the Sixth Circuit asked to skip the three-judge motions panel and have the case initially heard before the full Sixth Circuit en banc. These types of requests are typically longshots, but it is not unimaginable that the Sixth Circuit would grant such a request. The response to the petition is due November 30.
If the court does not grant expedited en banc review, a dissatisfied party could try to seek en banc review in front of the whole Sixth Circuit after a ruling by the three-judge motions panel. (Alternatively, since there is no obligation to seek en banc review, a dissatisfied party could seek immediate review by the Supreme Court, as discussed below.) If the motions panel does affirm the stay, the momentum would be against the en banc court reversing that decision, particularly given the overall makeup of the court. Even if a Sixth Circuit motions panel lifts the stay, it is not difficult to envision the full en banc Sixth Circuit reinstating it.
Supreme Court
Whatever happens at the Sixth Circuit with the stay (affirming or lifting the stay, either by the motions panel or en banc), the dissatisfied party is likely to appeal the Sixth Circuit’s decision to the Supreme Court. The Supreme Court then must decide for itself whether to leave an existing stay in place or impose a stay of its own (if the Sixth Circuit has lifted it). The Supreme Court will have to rule on the application one way or another. This process takes place on the Court’s so-called “shadow” or “emergency” docket, and normally occurs based only on the papers, without full merits briefing or oral argument.
A Supreme Court ruling is not likely to happen until after the ETS’s first compliance deadline, which would otherwise fall on December 6 (and covers all requirements under the ETS except for the testing of unvaccinated employees). Although many Supreme Court justices have also expressed concerns about administrative agency power, it is still possible that the Supreme Court would lift a stay even if the Sixth Circuit ordered one.
Bottom Line Takeaway for Employers
It is unknown how quickly the Supreme Court will act, although it is certainly possible the Court will issue a decision on the stay in December. The prudent course of action for businesses with more than 100 employees is to continue planning so that they can quickly come into compliance if necessary.
UNDERLYING CHALLENGE TO THE ETS
Putting aside the issue of the stay, the Sixth Circuit also must evaluate the challenge to the ETS on its merits, deciding whether to affirm or invalidate the ETS. Because the ETS expires after six months, the parties may seek to expedite proceedings on the merits of the appeal. Still, even expedited proceedings on the merits of the appeal are not likely to be resolved before the new year, and then it would take another few months following briefing and oral argument for the appeal to make its way through Supreme Court review. A decision by the Supreme Court on the validity of the ETS is not likely before the spring, even under expedited proceedings (although it is possible). For a decision on the underlying challenge to be relevant (i.e., to happen by May 5, 2022, which is six months after the ETS’s November 5, 2021 effective date and the date on which the ETS is set to expire), the government would have to convince the Supreme Court to allow it to bypass the Sixth Circuit altogether, which the Supreme Court permits only rarely. Otherwise, the usual timeline for even an expedited appeal would extend through much (if not all) of the lifespan of the ETS.
Of course, nothing about the litigation regarding the ETS would prevent OSHA from attempting to issue a permanent COVID-19 standard pursuant to its regular notice and comment authority. Depending on what happens in the next few months with COVID-19 and the rates of transmission, that remains another option for OSHA to pursue.
Morgan Lewis will continue to track these issues, and any decisions and briefing schedules, moving forward.
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