Disputes Regarding the Mandate-or-Test Emergency Temporary Standard That OSHA Issued to Be Heard by a Circuit Selected Through a Multi-Circuit Lottery

On Friday, November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued a mandate-or-test Emergency Temporary Standard (ETS) that will take effect in January 2022. The ETS will mandate that most employers with 100 or more employees either (1) require vaccination (with exceptions for reasonable accommodation for medical and/or religious reasons) or (2) require that any employees who are not vaccinated and who do not qualify for reasonable accommodation submit to weekly COVID tests and wear face coverings. Republican-led states and private businesses petitioned the Fifth Circuit Court of Appeals to permanently block the ETS from going into effect and the Court granted a temporary stay of the ETS. In doing so, the Fifth Circuit panel stated that the petitioners in the case gave “cause to believe there are grave statutory and constitutional issues with the mandate.” 

The Fifth Circuit Petitioners (“Petitioners”), which include 15 Louisiana supermarkets and the supermarkets’ management company, claim they will be adversely effected by the ETS because they are already suffering labor shortages, and the ETS will make it even more difficult to hire and retain employees. The Petitioners also argue that the ETS will diminish their ability to provide groceries to Louisiana state residents. The Petitioners also include six individually named residents of Texas and employees of CaptiveAire Systems, a Texas corporation that touts itself as the nation’s leading manufacturer of commercial kitchen ventilation systems. The individual Petitioners claim they will be adversely affected by the ETS because it will force them to show their employer proof of COVID-19 vaccination at the risk of losing their jobs and livelihoods. The individual Petitioners claim the alternative option of weekly COVID-19 testing and wearing masks at work is “troubling, unfair, and illegal” and represents “an egregious government overreach.”

On November 8, 2021, the U.S. Department of Justice (DOJ) filed a letter advising the Court that petitions for review challenging the same ETS had been filed in the District of Columbia, Sixth, Seventh, Eighth and Eleventh Circuits. The DOJ’s letter also noted that the United States expects the multi-circuit lottery to take place on or about Nov. 16, 2021, “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 judicial panel on multidistrict litigation will randomly choose a circuit to hear the case. The judicial panel consists of seven circuit and district judges from different circuits that are designated by Chief Justice of the United States John Roberts.

Just before 5 p.m. that same day, the government filed its response in opposition to the petition, focusing its argument on the assertions that OSHA reasonably concluded that these emergency standards were necessary to address the grave dangers posed by the COVID-19 pandemic and had ample basis for its findings. The government also argued that the Petitioners could not establish any impending irreparable injury now, or in the future when the ETS is scheduled to go into effect early next year. The Petitioners’ reply is due 5 p.m. on Nov. 9, 2021.  A flurry of other filings were added to the docket on Nov. 8, 2021, including amicus briefs by businesses that are not petitioners in the Fifth Circuit litigation but support Petitioners’ goal to block the ETS from going into effect for similar reasons.

This is a rapidly developing story. Stevens & Lee continues to closely monitor the Fifth Circuit and other United States Courts of Appeal and will immediately notify of significant developments. In the meantime, employers should still prepare for, and assume, that they will have to comply with the ETS mandate by January 4, 2022, as currently scheduled.

For more information, please contact Lisa Scidurlo at lisa.scidurlo@stevenslee.com, Joseph Hofmann at joseph.hofmann@stevenslee.com, Theresa Zechman at theresa.zechman@stevenslee.com, Daniel Sobol at daniel.sobol@stevenslee.com, Alexander Batoff at alexander.batoff@stevenslee.com, Rachelle Highland at rachelle.highland@stevenslee.com or reach out to the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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