VACCINATION MANDATES: BLOG SERIES PART 7

On Monday, we informed you about the Fifth Circuit’s Stay enjoining OSHA’s emergency temporary standard (ETS) creating a vaccine mandate for all employers with 100 or more employees.   Since OSHA announced their intent to impose the ETS, Petitions for Review have been filed in each of the eleven (11) regional circuit courts of appeal and the District of Columbia Circuit Court of Appeals.  In order to prevent inconsistent rulings and a multiplicity of challenges throughout the country, an actual lottery was held to decide which court would be assigned to address all challenges to the ETS.  The United States Judicial Panel on Multidistrict Litigation is tasked by law with the responsibility of deciding which circuit would hear all of the challenges.  Each circuit court was placed in a hat and the Sixth Circuit Court of Appeals based in Cincinnati was randomly selected and has won the lottery to determine the validity of the mandate.  It is believed that OSHA will ask the Sixth Circuit to review the Fifth Circuit’s Stay order.  OSHA, however, has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

The Sixth Circuit is almost as a conservative as the Fifth Circuit.  As such, we anticipate the likelihood of the Stay continuing to remain in effect is high.  For now, the Stay is in effect and no one is required to implement the mandate.  Ultimately, no matter which circuit won the lottery, the United States Supreme Court will have the final say on who wins. 

For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.