Sixth Circuit designated to rule on consolidated challenges to OSHA’s vaccinate or test mandate

By Pamela Wolf, J.D.

Twenty-seven lawsuits filed in 12 different federal circuit courts of appeals seeking review of OSHA’s private employer vaccinate or test mandate have been consolidated for review in the Sixth Circuit. The Multidistrict Litigation Panel announced the designation on November 16, 2021. Earlier, the Justice Department had cited the anticipated designation as a reason for the Fifth Circuit to refrain from taking further action on the temporary stay of the COVID-19 mandate that the court had issued 10 days earlier.

OSHA’s COVID-19 ETS. On November 5, the Department of Labor published OSHA’s emergency temporary standard (ETS) to protect unvaccinated employees of large employers. The interim final rule requires employers of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination.

The ETS also requires employers to provide paid time for workers to get vaccinated and to allow for paid leave to recover from any side effects. The interim final rule also requires employers to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status;
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and to remove the employee from the workplace, regardless of vaccination status, and not permit them to return to work until they meet required criteria;
• Ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Fifth Circuit’s temporary stay. Challenges to OSHA’s ETS quickly piled up. In one of those cases, BTS Holdings, LLC v. OSHA, the Fifth Circuit in a brief order on November 6, entered a temporary stay of the mandate. Citing “cause to believe there are grave statutory and constitutional issues” with the Biden Administration’s vaccine mandate, the appeals court stayed the ETS pending further action.

That order came in response to a November 5 motion to stay the ETS that was filed by a group of businesses and the states of Louisiana, Mississippi, South Carolina, Texas, and Utah.

Why not let the multidistrict court take it from here? In response to the temporary stay, the Justice Department asked the Fifth Circuit, among other things, to refrain from taking any further action given that a single court would soon be designated to handle the many cases challenging the ETS. In a November 8 letter to the Clerk of Court for the Fifth Circuit, the DOJ apprised the court that a dozen petitions to review the same ETS had been filed in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. “The United States expects the multi-circuit lottery to take place on or about November 16, after which all petitions for review will be consolidated in one court of appeals responsible for deciding these petitions and considering or reconsidering any stay orders,” the DOJ wrote.

Further, in its opposition to the petitioners’ emergency stay motion, the federal government questioned why the emergency relief sought by the petitioners was necessary. Most of the harms alleged were purportedly at least one month off, and many harms related to a testing requirement that was not effective until January 2022. The petitioners asserted little prospect of harm until December 7, which was 28 days prior to the January 4, 2022 compliance date for the ETS, the government observed.

Thus, argued the DOJ, there was no need to address the petitioners’ stay motions now, and the appeals court should therefore lift its administrative stay and allow the matter to proceed under the process that Congress set forth for judicial review of OSHA standards. That process contemplates that litigation over the ETS would soon be consolidated in one federal court of appeals.

Fifth Circuit affirms its stay. Unpersuaded, the Fifth Circuit, less than one week after issuing its initial stay, reaffirmed that decision and ordered OSHA to take no steps to implement or enforce the mandate until further court order. The November 12 order thus granted the petitioners’ motion for a stay pending review, staying enforcement of the OSHA ETS pending “adequate judicial review” of their motions for a permanent injunction (see 5th Cir.: Stay on OSHA’s ETS affirmed; agency ordered to ‘take no steps to implement or enforce’ vaccine mandate, November 15, 2021).

The court found that the petitioners’ challenges to the mandate were likely to succeed on the merits, determining that the mandate, even if it passed constitutional muster, was the “rare government pronouncement” that was both underinclusive and overinclusive. The court also found it unclear that COVID-19 posed the kind of grave danger required for an ETS and that the mandate raised “serious constitutional concerns.”

Consolidated cases. The Sixth Circuit, randomly selected by lottery, will now review the challenges to the ETS that are raised in 27 petitions that were pending in federal appeals courts in the District of Columbia and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. All of these petitions were filed within 10 days of the ETS’s issuance.