Sixth Circuit

CDC Relaxes Isolation and Quarantine Recommendations – How Does That Affect OSHA’s Vaccinate-or-Test ETS?

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

On December 27, 2021, the CDC updated and shortened its recommended isolation and quarantine periods for the general population.  To be precise, yesterday CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated.  CDC explained in the statement that:

“[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”

What are CDC’s New Isolation and Quarantine Guidelines? 

With respect to isolation (which relates to behavior after a confirmed infection), CDC states:

“[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.”

Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”

Additionally, with respect to quarantine (which refers to the time following exposure to the virus or close contact with someone known to have COVID-19), CDC states: Continue reading →

OSHA’s Vaccinate-or-Test ETS in the Hands of the Supreme Court

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit.  That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:

  • the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
  • more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.

Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals.  Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit.  Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.

On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th.  The Order does not provide for any additional briefing by petitioners or friends of the court.  Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.

We now have a clearer picture of Continue reading →

[BREAKING] Sixth Circuit Rescinds Stay of OSHA’s Vaccinate-or-Test Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, the Court’s rationale for lifting the stay is that Continue reading →

Update on Challenges to Federal Contractor Mandate

Eric J. Conn 2 Comments

By Fern Fleischer-Daves

*As of 12/18/21, the federal contractor mandate is currently subject to federal court injunctions. 

While we remain focused on the legal challenges now consolidated at the Sixth Circuit Court of Appeals, quite a lot has been going on with regard to the Federal Contractor Mandate which is facing its own set of challenges.

Did you recently receive a request to amend an existing federal contract? 

If so, you are not alone!  Over the past few weeks, federal administrative agencies have been busy sending emails to tens of thousands of federal contractors seeking to amend existing federal contracts by implementing a COVID-19 vaccination mandate pursuant to guidance issued by the Safer Federal Workforce Taskforce.  These efforts are now being tracked through a new online interactive dashboard reflecting whether or not the 17,000+ contracts currently administered by GSA have been amended.  The contracts in this publicly accessible database are classified as  “Accepted”, “Closed/Cancelled”, or “Pending.”  Meanwhile, federal agency contracting officers are being strongly encouraged to check this database before placing new orders.

image

Needless to say, there are potentially serious consequences for a current federal contractor who fails to respond or declines to accept the vaccination mandate.  GSA has warned that company names flagged as “Closed/Cancelled” in this database may be removed or hidden in other federal contracting tools which will make it difficult if not impossible to get any new orders on existing contracts. Recent solicitations for new federal contracts have the clause implementing EO 14042 already included in the terms and conditions.

Employees of federal contractors challenge EO 14042

While several cases have been filed to challenge the President’s authority to mandate vaccinations for federal employees and/or contractors, so far, none have secured a stay of EO 14042.

In Altschuld v. Raimondo, employees of more than a dozen different federal agencies and two unnamed government contractors are challenging both Executive Orders 14042 and 14043.  Last week, Judge Chutkan in the DC Circuit Court held that plaintiffs failed to show irreparable harm, since they had all requested religious exemptions from the vaccination mandate, so they are not entitled to a preliminary injunction.  Explaining further, the Court noted that: Continue reading →

30+ Challenges to OSHA’s Vaccination, Testing, and Face Coverings ETS Consolidated in the Sixth Circuit

Eric J. Conn Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Since OSHA published its Vaccinations, Testing, and Face Coverings ETS in the Federal Register 11 days ago, petitioners have filed more than 30 separate lawsuits challenging the legality of the ETS and moving to temporarily and then permanently enjoin implementation of the ETS. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions (presumably for strategic reasons – to give more liberal courts a chance to take the lead in hearing the litigation).

By judicial procedure, when a legal challenge to an OSHA standard is filed in more than one US Court of Appeals, the US Judicial Panel on Multi-District/Circuit Litigation will respond to a motion by either party in the challenge to consolidate all of the challenges that were filed within 10 days of issuance of the standard, and by way of a true lottery, will assign the consolidated cases to a single circuit court.

Yesterday marked the tenth day since the OSHA ETS was published in the Federal Register, so this morning, (November 16th), the Department of Labor gave notice to the MDL Panel of the numerous petitions for review of a single case filed in each of the 1st, 2nd, 3rd, 5th and 10th Circuits, two cases in each of the 4th and 7th Circuits, three cases in the 9th, 11th, and District of Columbia Circuits, four cases in the 8th Circuit, and five cases in the 6th Circuit.  For those keeping score at home, that’s at least one legal challenge filed in every US Court of Appeals in the country except for the Federal Circuit, which does not have jurisdiction to hear challenges to OSHA standards.  Regardless of the number of challenges filed in any given circuit court, each circuit had one chance in the lottery. Continue reading →