Many employers are asking the same question: 

Should we enact the written vaccine policies required in the emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration?  The Fifth Circuit has said no, but the White House has said yes. Presently, there is no definitive answer, but tomorrow we will be one step closer.

On November 5, 2021, several states filed emergency lawsuits in various courts, including the United States Court of Appeals for the Fifth Circuit, to invalidate the ETS. On November 6, 2021, the Fifth Circuit halted the rule, issuing a temporary injunction. Following the arguments from various parties, the Fifth Circuit issued a “permanent” injunction, blocking OSHA from implementing and enforcing the ETS. 

In between the Fifth Circuit’s two decisions, the White House advised employers to comply with the ETS. Understandably, the disconnect between the White House and the Fifth Circuit has caused confusion amongst private employers. That confusion, however, may be addressed soon.

Under federal law, when multiple lawsuits involving “one or more common questions of fact” are filed in separate courts, the petitions are consolidated and heard by one court chosen at random. Presently, appeals are pending in the following circuits:  1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th, and the District of Columbia Court of Appeals. On November 16, 2021, a lottery is set to take place, which will indicate which circuit court will hear the various appeals concerning the ETS. The court selected will have the authority to either affirm or undo the injunction the Fifth Circuit put in place.  Thus, while the ETS is currently halted, its fate is still very much up in the air.

HR Legalist will monitor the lottery and will provide an update as soon as practicable, detailing the impact of the circuit court selected. Until then, employers should be wary that, although the ETS presently is in purgatory, the court selected may deem the ETS valid, thus requiring employers to implement a written policy soon as possible.

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