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On Nov. 4, private employers with 100 or more employees were given a deadline — Jan. 4, 2022 — to make sure their workers would receive COVID-19 vaccinations or undergo weekly coronavirus testing.
This mandate, of course, came as part of the emergency temporary standard (ETS) that Occupational Safety and Health Administration (OSHA) issued that day, obliging these organizations to “develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”
Just two days later, however, a federal appeals court put the brakes on that mandate, at least temporarily.
On Nov. 6, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement, with the New Orleans-based court delaying the federal requirement because of “grave statutory and constitutional issues” raised by plaintiffs challenging the mandate.
Critics have called the Biden administration’s vaccination requirements an overreach. Louisiana Attorney General Jeff Landry, for example, said in a statement that the President “will not impose medical procedures on the American people without the checks and balances afforded by the Constitution.”
And Republican attorneys general in more than 20 states have challenged the administration’s vaccine and testing requirements in five U.S. appeals courts since the mandate was announced not quite two weeks ago. The Republican National Committee has also challenged the requirements in the D.C. Court of Appeals.
Nonetheless, the Biden administration is confident that the requirement — which carries penalties north of $13,000 per violation — will withstand legal challenges, with Solicitor of Labor Seema Nanda citing OSHA’s authority to “act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”
Phillip Russell, an attorney and resident in Ogletree Deakins’ workplace safety and health group, says “it’s too early to tell whether the ETS will survive.”
Still, many employers figure to be watching closely while continuing to prepare for compliance with the mandate, said Russell.
“I have discussed all possible ranges with clients’ executive teams and each employer must decide for itself. There are many things an employer can do now that are not employee-facing, such as preparing the plan, making decisions on who is covered and who is exempt, and discussing strategies for vaccination requirements or testing.”
As of right now, the 5th Circuit panel’s stay remains in effect until further action by the 5th Circuit or action by the federal circuit that will hear the consolidated case, he said.
“The 5th Circuit could leave the stay in place by issuing an order confirming [the] stay remains in place and setting forth details supporting its initial order which found ‘grave statutory and constitutional issues’ — a clear retort to OSHA’s claim of ‘grave danger’ justifying the ETS.”
The panel could also issue an order vacating the stay, “but, based on my review of the briefs, this is not likely,” said Russell. “Of course, I’m not on the panel and predicting judicial outcomes is not a certainty.”
The “lottery” that Russell references is due to be held on or around Nov. 16, when a court of appeals will be randomly selected to hear the case. (When multiple petitions are filed in at least two courts, as has happened here, federal statute 29 USC §2112 requires the judicial panel on multidistrict litigation to randomly select one court of appeals to hear all consolidated cases, regardless of where they were filed.)
Where the case is heard matters, said Russell.
“This is where party affiliation tends to show how a judge might review the ETS. It turns primarily on how a judge interprets and applies limitations on executive agency power. Democrats tend to want to expand government power through the executive branch. Republicans tend to see constitutional and statutory limits on executive branch power,” he said, adding that these are general statements and only show tendencies.
“There are plenty of times when these statements don’t hold up.”
All that said, party affiliation of the majority of judges on the circuit tend to suggest a possible outcome, “because it would tend to suggest the judicial interpretation leanings of the three-judge panel that will first hear the substantive arguments for or against the ETS.”
Headed for the Highest Court in the Land?
Wherever the case goes next, Russell predicts that it could ultimately be a matter for the Supreme Court to decide.
“You can bet Chief Justice Roberts and his colleagues are watching this case closely,” said Russell. “[There will be] an accelerated review of whatever decision is made by whatever circuit gets the case through the lottery assignment. When? It seems the final review will likely be in weeks or months, not months or years. But I don’t know that anyone can say.”
While the temporary stay order grabbed headlines, the order alone will unlikely be enough to shift the deadline for compliance with the ETS, said George Ingham, a labor and employment partner at global law firm Hogan Lovells.
If the stay remains in place after the lottery process unfolds, the Jan. 4 deadline conceivably could be pushed back, unless the challenge to the ETS is resolved in a “very speedy” fashion, said Ingham.
Of course, there’s no guarantee that the stay will be upheld, and organizations need to weigh the risks and benefits of continuing to plan for compliance versus pressing the pause button, he said.
“Given the significant effort it will take an employer to comply with the ETS, an employer [that] stops now will face the risk that the compliance deadlines will arrive and the employer will not be ready,” said Ingham.
“On the other hand, employers with workforces with low vaccination rates may see that potential attrition is a greater risk than noncompliance with the ETS, and may be willing to ‘wait and see,’ even if that increases the risk of a compliance problem under the ETS.”
About the Author
Mark McGraw is the managing editor of Workspan.