On November 16, 2021, the Sixth Circuit was selected via a lottery to hear the consolidated challenges made against the recent OSHA Emergency Temporary Standard (the ETS). As background, on November 5, 2021, OSHA published the ETS that would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing.
While all eyes had previously been on the Fifth Circuit, it is now the Sixth Circuit that’s in the spotlight. Not surprisingly, there has been a flurry of activity in the case. There are currently two main issues pending before the court that will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting that the full court – and not just a three-judge panel – decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.
Petitions for initial hearing en banc
Many of the parties challenging the OSHA ETS have filed or joined various petitions requesting an initial hearing en banc (before the three-judge panel has even been determined and decided the case). The petitioners’ request for an en banc hearing at this stage is uncommon. Under Federal Rule of Appellate Procedure 35, a determination for a proceeding to be heard en banc “is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” The petitioners argue that, among other things, the matter clearly involves a question of exceptional importance, and that an initial en banc hearing is actually more efficient because it is likely that after a three-judge panel makes its decision, the losing party will ask for the full court to reconsider the decision.
In its opposition to the requests for an initial hearing en banc, the government concedes that the proceeding involves questions of exceptional importance. However, the government argues that the request for an initial en banc panel should not be granted because there is no inter- or intra-circuit conflict and because the matter does not involve questions that require initial consideration by the full panel since they involve the application of established legal principles. The government also argues that an initial en banc consideration is too time consuming and inefficient, and the matter is time sensitive given the threat of COVID-19.
It is unclear whether the Sixth Circuit will grant the request for an initial en banc hearing. The request itself is uncommon, and granting such a request is quite rare. However, this is not a typical case. Like the Fifth Circuit, the majority of the judges on the Sixth Circuit are republican-appointed. If the court grants the request for en banc, based on the current makeup of the Sixth Circuit, it is likely that the ETS will not be upheld, or that it may be amended.
Emergency motion to dissolve stay
On November 12, 2021, the Fifth Circuit granted a motion to stay the ETS and ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” In response, the agency has stated that “OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
On November 23, 2021, the government asked the Sixth Circuit to dissolve the Fifth Circuit’s stay. In its motion, it argued that the stay should be dissolved because the petitioners are unlikely to succeed on the merits of their case since: (1) OSHA reasonably concluded that the ETS is necessary to address a grave danger; (2) the Fifth Circuit’s statutory interpretation was flawed by concluding that OSHA cannot address workplace dangers posed by “an airborne virus”; (3) the Fifth Circuit mistakenly used “constitutional concerns” to undermine the authority granted to OSHA by the Occupational Health and Safety Act; and (4) OSHA had ample basis for its determinations. The government also argues that the balance of equities prevents the stay from remaining in place (i.e., petitioners have not shown any injury that outweighs the injuries to the government and the public interest). In the alternative, the government proposes ways in which the stay could be modified to still protect employees. For example, the government proposes that the masking and testing requirement remain in effect during the litigation (but not any vaccination requirement).
Any motions to modify, revoke, or extend the stay had to be filed by November 30. Responses to the government’s motion to dissolve the stay are due on December 7, and replies are due on December 10. Based on the expedited briefing schedule, we assume the Sixth Circuit is going to attempt to issue a quick ruling on the stay issue.
For further discussion on the OSHA ETS, please watch our Employment Law Watch: Real Time video chats:
- The basics of the OSHA ETS on vaccination and testing requirements (Part 1)
- The nitty, gritty details of the OSHA ETS (Part 2)
Please note that this post is current as of December 3, 2021. The case is moving quickly, so please stay tuned for further updates.
If you have questions regarding the OSHA COVID-19 Rule Case, the OSHA ETS, or implementing the requirements of the OSHA ETS in the workplace, please do not hesitate to contact any member of the Reed Smith Labor and Employment and EHS team.