Gambling on the Fate of the OSHA ETS Vaccine Mandate

Alerts / November 16, 2021

After much anticipation and speculation, the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) vaccine mandate is finally here. Or is it? On Nov. 5, 2021, OSHA issued the ETS requiring employers with at least 100 employees to develop a vaccination policy by Dec. 5 that requires employees to either be fully vaccinated against COVID-19 or submit to weekly testing for the virus. That same day, lawsuits challenging the ETS were filed in the United States Court of Appeals for the Fifth, Eighth and Eleventh circuits. Acting quickly, the Fifth Circuit (which covers Louisiana, Texas and Mississippi) issued an order the next day granting a temporary stay of the ETS. The order, however, left one significant issue unclear: Does the stay apply only in the Fifth Circuit, or does it apply nationwide? Since then, additional lawsuits challenging the ETS have been filed in every federal circuit court. So, what happens next?

The lottery. When multiple lawsuits involving a common question of fact are filed in separate courts, the lawsuits are consolidated and heard by one court. Each federal circuit court in which a lawsuit has been filed will get one entry in a lottery, regardless of the number of individual lawsuits that were filed in that particular court. The Judicial Panel on Multidistrict Litigation will then randomly draw one entry from that lottery. The lottery will occur on or after Nov. 16. All the lawsuits will then be consolidated and heard before that court. The selected court could then decide to keep the stay that was issued by the Fifth Circuit, modify the stay or throw it out. The court could also limit the scope of the stay to only the federal circuits that were in the lottery or could apply the stay nationwide. One thing that’s for sure is that if the Fifth Circuit is selected via the lottery, the odds are against the ETS. However, if the lawsuit does stay in the Fifth Circuit or is assigned to another court that is perceived to be conservative, the Department of Labor and OSHA could decide to take the stay to the Supreme Court of the United States.

All bets aside, in the meantime, employers should continue developing their vaccine/testing policies. If mandate proponents hit the lottery jackpot, employers don’t want to be in the red come the Dec. 5 mandate compliance deadline.

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