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Fifth Circuit Hits Pause on Federal COVID-19 Vaccine or Testing Mandate; Compliance Steps Still Advised

Advocacy News – November 9, 2021

One day after the Biden Administration released its COVID-19 vaccine or testing Emergency Temporary Standard (ETS) for businesses with 100 or more workers, the 5th U.S. Circuit Court of Appeals granted a nationwide stay of the ETS.

The Occupational Safety and Health Administration (OSHA) ETS took effect immediately upon publication in the Federal Register (Nov. 5), but was stayed a day later by the U.S. Court of Appeals for the 5th Circuit.  To date, lawsuits challenging the ETS have been filed in the U.S. Courts of Appeals for the 5th, 6th, 7th, 8th, 11th and D.C. Circuits.

Federal statute specifies when multiple lawsuits are filed in different circuits, the cases will be consolidated and transferred to one circuit chosen by lottery. 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 U.S. Supreme Court. The Department of Justice informed the Courts of Appeal that it expects the multi-circuit lottery to take place on or about November 16.

On November 6, the 5th Circuit, a three-judge panel, issued an order staying OSHA’s mandate pending further action of that court, because the “petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” The panel ordered the U.S. Department of Labor to respond to the petitioners’ motion for a permanent injunction of the mandate by the close of business on November 8. Petitioners will have until November 9 to file their reply.

What does the stay mean for employers?  While the ETS is stayed, employers do not have to comply with its terms. However, the stay could be lifted by the 5th Circuit or the circuit court that gets the consolidated cases for review. If the stay is lifted, employers will need to comply with the ETS.

Given the uncertainty around this issue, it would be wise to create policies and procedures for compliance with the ETS and to be prepared to implement them, should the stay lift or the court uphold the ETS.

What compliance resources are available?  The Michigan Chamber is working to make compliance resources available to its members.  On November 8, we did a free compliance webinar with the attorneys at Butzel Long.  That webinar is now available on-demand HERE.  In addition, we have put together a COVID-19 Vaccine or Testing Toolkit, which is intended to help educate employers on what’s required and offer compliance resources.  We will continue to provide updates on this issue via MI Chamber News.  (Previous updates can be found HERE and HERE.)

If we can help you better understand the ETS and its requirements, please contact Wendy Block at wblock@michamber.com.  If you have any difficulties registering for the webinar, please contact Tammy Zdunic at tzdunic@michamber.com.

Advocacy News – November 9, 2021

One day after the Biden Administration released its COVID-19 vaccine or testing Emergency Temporary Standard (ETS) for businesses with 100 or more workers, the 5th U.S. Circuit Court of Appeals granted a nationwide stay of the ETS.

The Occupational Safety and Health Administration (OSHA) ETS took effect immediately upon publication in the Federal Register (Nov. 5), but was stayed a day later by the U.S. Court of Appeals for the 5th Circuit.  To date, lawsuits challenging the ETS have been filed in the U.S. Courts of Appeals for the 5th, 6th, 7th, 8th, 11th and D.C. Circuits.

Federal statute specifies when multiple lawsuits are filed in different circuits, the cases will be consolidated and transferred to one circuit chosen by lottery. 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 U.S. Supreme Court. The Department of Justice informed the Courts of Appeal that it expects the multi-circuit lottery to take place on or about November 16.

On November 6, the 5th Circuit, a three-judge panel, issued an order staying OSHA’s mandate pending further action of that court, because the “petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” The panel ordered the U.S. Department of Labor to respond to the petitioners’ motion for a permanent injunction of the mandate by the close of business on November 8. Petitioners will have until November 9 to file their reply.

What does the stay mean for employers?  While the ETS is stayed, employers do not have to comply with its terms. However, the stay could be lifted by the 5th Circuit or the circuit court that gets the consolidated cases for review. If the stay is lifted, employers will need to comply with the ETS.

Given the uncertainty around this issue, it would be wise to create policies and procedures for compliance with the ETS and to be prepared to implement them, should the stay lift or the court uphold the ETS.

What compliance resources are available?  The Michigan Chamber is working to make compliance resources available to its members.  On November 8, we did a free compliance webinar with the attorneys at Butzel Long.  That webinar is now available on-demand HERE.  In addition, we have put together a COVID-19 Vaccine or Testing Toolkit, which is intended to help educate employers on what’s required and offer compliance resources.  We will continue to provide updates on this issue via MI Chamber News.  (Previous updates can be found HERE and HERE.)

If we can help you better understand the ETS and its requirements, please contact Wendy Block at wblock@michamber.com.  If you have any difficulties registering for the webinar, please contact Tammy Zdunic at tzdunic@michamber.com.

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