As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.

Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”

There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”   

Both dissents give short shrift to the denial of initial hearing en banc. Instead, as the dissent by Chief Judge Sutton acknowledges, “the existence of the en banc motion gives the judges of our Court the option to offer their perspectives on the stay motion, in opinions concurring in the denial of initial hearing en banc or dissenting from it.” Chief Judge Sutton took that opportunity,  issuing a lengthy opinion focusing on the merits of the case and concluding that ETS should remain stayed. His dissent mainly discusses the Secretary of Labor’s lack of authority to impose a vaccinate-or-test mandate.

The second dissent is by Judge Bush. While Chief Judge Sutton’s dissent focuses on OSHA’s lack of authority to issue the ETS, Judge Bush’s dissent focuses on the inability of Congress to delegate to OSHA the imposition of a “de facto national vaccine mandate upon the American people” under the Commerce Clause.

We now wait for the three-judge panel’s decision on whether the Fifth Circuit’s stay of the ETS will be dissolved, modified, or extended. The issue is fully briefed before the Sixth Circuit.

Please note that this post is current as of December 16, 2021. The case is moving quickly, so please stay tuned for further updates.

If you have questions regarding the status of the litigation of 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 team.