Tuesday, November 16, 2021: Private Employers Forced to Remain on Their Toes as Changes to COVID-19 Vaccine Mandates are Occurring Daily/OSHA Suspended Its Own Emergency Temporary Standard
Employers need to set a daily Google Alert it appears to determine the status of government-mandated COVID-19 vaccine mandates for employees. As a result of the numerous lawsuits filed in response to the Biden Administration’s vaccine mandates (some of which we highlighted last week), several significant developments occurred over the course of the last week about which employers must be aware when planning next steps as to their COVID-19 vaccination policy.
The Order of the United States Court of Appeals for the Fifth Circuit Staying the OSHA ETS Started a Complex Chain of Legal Events. First, as we reported last week, the Fifth Circuit Court of Appeals issued an order staying the federal Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (“ETS”) (which seeks to require private employers subject to the Occupational Safety and Health Act (“OSH Act”) and with 100 or more employees to compel their employees to either become fully vaccinated against COVID-19, or test them weekly, or terminate their employment.
Second, given the flurry of lawsuits against the OSHA ETS across all 12 Federal Circuit Courts of Appeal, OSHA was required, by law, to notify the Judicial Panel on Multidistrict Litigation (“Panel”) of the existence of multiple suits challenging the same agency order.
Third, as a result of that Notice, to preserve judicial resources, the Judicial Panel immediately exercised its authority pursuant to Panel Rules 25.1 through 25.6. The Judicial Panel then immediately made resort to a time-honored random method of selection and quickly selected the United States Court of Appeals for the Sixth Circuit (Cincinnati) to first consolidate and then hear all of the remaining lawsuits challenging the OSHA ETS. For those wondering what technological algorithm the Panel used to select the Sixth Circuit, the Panel conducted, as always by tradition, a lottery by drawing a ping pong ball from a spinning drum (no different than the mechanism used in any local Bingo Hall in America).
Fourth, the next step will be for the Sixth Circuit to consolidate all of the pending (and any future) Complaints attacking the OSHA ETS in the Sixth Circuit collection of Complaints all proceeding under one caption.
Fifth, once the Sixth Circuit has received all the Complaints and docketed them, it will appoint a lead trial counsel to be the representative of the many lawyers and law firms representing the hundreds of litigants challenging the OSHA ETS.
Sixth, once all the procedural niceties are out of the way, the full bench of the Sixth Circuit sitting en banc (i.e., the full court, currently made up of 11 judges Republican presidents have appointed and five judges Democrat presidents have appointed) will decide what kind of briefing and argument (if any) the Sixth Circuit wants and on what schedule. That briefing will include whether to uphold or lift the Fifth Circuit’s order staying the rule.
Seventh, in a fashion the Sixth Circuit will identify, it will then proceed to decide the issues raised in all of the Complaints and issue an Order as to the validity of the OSHA ETS. Parties whose claims were consolidated into the action before the Sixth Circuit may petition to transfer their particular case to another circuit. As of this writing, no parties had petitioned to transfer. (Too soon).
OSHA Suspended Its ETS on Its Own Initiative: Finally, later on November 16th, OSHA itself announced (via an unpublicized and undated page suddenly appearing on its website) that it would suspend implementation and enforcement of its ETS pending future developments in litigation. While noting it remained “confident in its authority to protect workers in emergencies,” OSHA noted its action was a result of the Fifth Circuit’s order that OSHA “…take no steps to implement or enforce the ETS until further court order.” For now, OSHA’s announcement alerts private employers with 100 or more employees that they no longer face compliance requirements associated with the ETS until such time as the pending litigation reinstates the ETS, if it does. Thus, private employers now have some breathing room as to the ETS’ (now) January 4, 2022 deadline (as delayed) to implement a vaccine mandate program.
OSHA Has Not and Will Not Suspend the Public Comment Period on its ETS Which Remains in Progress. So, if you want to comment on the ETS, you must do so on the original comment schedule OSHA originally published. OSHA made that clear on its undated website page (which appeared on November 16, 2021) announcing the suspension of its ETS:
“Written comments on any aspect of the ETS must be submitted by December 6, 2021 in Docket number OSHA-2021-0007. Written comments on the information collection determination as described in V.K. of the ETS preamble [2021-23643] must be submitted by January 4, 2022 in Docket number OSHA-2021-0008.”
On November 17, 2021, Secretary of Labor Marty Walsh’s Lawyers Got Nervous and Put Him Up to Signing a “Ratification” of the OSHA ETS. Fearful they might have opened up a channel of procedural attack on the OSHA ETS since the Secretary had not originally signed the important OSHA ETS and USDOL had NOT published the ratification in the Federal Register, USDOL did an “about face” and suddenly published in the Federal Register a notification of the Secretary of Labor’s ratification of the OSHA ETS.
Background: On November 12, 2021, the Secretary of Labor ratified the November 5, 2021 interim final rule codifying the OSHA ETS. See Interim Final Rule, COVID-19 Vaccination and Testing; Emergency Temporary Standard (November 5, 2021). Here is USDOL’s official rationale (otherwise known in the vernacular in legal circles as “covering your butt”) for publishing the Secretary’s “Ratification” of the OSHA ETS in the Federal Register:
“The Department is now publishing the ratification in the Federal Register out of an abundance of caution. Neither the ratification nor the publication is a statement that the ratified action would be invalid absent the ratification, whether published or otherwise.”
Expect to Likely See Other Courts Soon Enjoin All Other Vaccine Mandates. While OSHA’s announcement applies only to its ETS applicable to private employers subject to the OSH Act and which employ 100 or more employees, those employers subject to the remaining vaccine mandate Guidances and Rule various other components of the Biden Administration have issued may soon find themselves in a similar situation. Specifically, the legal arguments the Fifth Circuit adopted in its Order staying the OSHA ETS are similar to those made in lawsuits against the various other mandates. Federal contractors and healthcare facilities in receipt of Medicare and Medicaid funds may thus soon find courts striking down the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance and the Centers for Medicare & Medicaid Services’ Interim Final Rule on similar legal grounds.
This is especially probable given the procedural failures (i.e., lack of public Notice and Comment) which burden the Biden Administration’s Guidance and Interim Final Rule. These procedural failures are more clear cut and egregious than the claimed legal frailties of the OSHA ETS (which we initially discussed here). Additionally, many of the suits against the Task Force’s Guidance and against the CMS’ Interim Final Rule are in courts similar in judicial philosophy to that of the Fifth Circuit. These include lawsuits in the Eastern District of Missouri, the Southern District of Florida, and the Southern District of Texas (which itself sits within the jurisdiction of the Fifth Circuit).
Thus, the one takeaway from the court decisions is the realization that a private employer’s own mandates, not mandated by the federal government, remain the most legally permissible means by which employers may compel vaccinations of its employees.