The Biden administration’s vaccine mandate for employers with more than 100 employees has been suspended pending the outcome of more than two dozen federal lawsuits filed in response to the OSHA Emergency Temporary Standard (ETS) rule.
A notice posted last week on OSHA’s website reads, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
The action comes after the Fifth U.S. Circuit Court of Appeals issued a stay against the ETS, and the subsequent consolidation of all federal litigation before the Sixth Circuit, chosen by a lottery system last Tuesday.
“The Sixth Circuit is currently considering a petition for initial hearing en banc. OSHA's response is due on Nov. 30, so we will get a ruling on that petition in early December. At issue is whether the case is handled by a three-judge panel or by the whole court,” Jonathan H. Adler, the Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, at Case Western Reserve University School of Law, said in an email response to the Northern California Record.
“We also expect OSHA to move to vacate the Fifth Circuit's stay, but that motion has not yet been filed,” Adler said. “Once we know whether the case will be heard by a three-judge panel or the en banc court, we should hear from the court on the expected briefing schedule, oral argument, etc.”
Legal action against the ETS was filed in all 12 of the regional circuit courts of appeal. At least three were in the Ninth Circuit, which includes California.
“All of the parties to all of the cases that were consolidated … will have an opportunity to contribute to the litigation,” said Adler, who also blogs about the issue at Reason.
“There will be a briefing order from the court at some point addressing how and to what extent the parties are required to consolidate their briefing,” Adler told the Record.
It remains to be seen how this legal action impacts employers going forward, and whether or not vaccine verification policies must be adopted in view of the OSHA ETS suspension.
“Employers are still free to adopt whatever vaccination or testing policies they wish, consistent with applicable state and federal laws. The OSHA ETS, however, is on hold,” Adler said.
Meanwhile, there are lingering questions about how the legal developments with the federal regulations affects implementation of the new Cal/OSHA ETS.
“California is free to adopt more stringent requirements than the federal government,” Adler said. “This litigation does not question or implicate state authority, only federal authority.”