TRO

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 16^th), 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 →

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.” Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months. Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.” To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading →