After much anticipation and speculation, the Occupational Safety and Health Administration’s (OSHA) Temporary Emergency Standard (ETS) mandate has finally arrived. Where is it? On November 5, 2021, OSHA released the ETS requiring employers with 100 or more employees to develop an immunization policy by December 5 requiring employees to be fully vaccinated against COVID-19 or undergo tests. weekly virus tests. On the same day, lawsuits challenging the ETS were filed in the United States Court of Appeals for the Fifth, Eighth and Eleventh Circuits. Acting quickly, the Fifth Circuit (which covers Louisiana, Texas and Mississippi) issued an order the next day granting a temporary stay for the ETS. The ordinance, however, left an important issue in the air: Does the suspension apply only in the Fifth Circuit or does it apply nationwide? Since then, additional lawsuits challenging the ETS have been filed in every federal circuit court. So what happens next?
The lottery. When several lawsuits involving a question of common fact are filed in separate courts, the lawsuits are consolidated and heard by a single court. Each federal circuit court in which a lawsuit has been filed will get entry into a lottery, regardless of the number of individual lawsuits that have been filed in that particular court. The Judicial Panel on Multidistrict Litigation will then randomly draw an entry from this lottery. The lottery will take place on or after November 16. All lawsuits will then be consolidated and heard before this tribunal. The selected court could then decide to maintain the suspension issued by the Fifth Circuit, to modify the suspension or to cancel it. The court could also limit the scope of the suspension to only federal circuits that were part of the lottery or could apply the suspension nationwide. One thing is certain is that if the fifth circuit is selected via the lottery, the odds are against the ETS. However, if the lawsuit remains in the Fifth Circuit or is assigned to another court perceived to be conservative, the Department of Labor and OSHA could decide to take the stay to the United States Supreme Court.
All bets aside, in the meantime, employers should continue to develop their vaccine / testing policies. If tenure supporters hit the lottery jackpot, employers don’t want to be in the red by the December 5 deadline.