OSHA recently issued an Emergency Temporary Standard (ETS) mandating that employers with 100 or more workers implement a vaccine mandate and/or testing policy by Jan. 4, 2022, with mask and other requirements for other unvaccinated workers taking effect Dec. 5, 2021.
As expected, opponents immediately filed over two dozen lawsuits challenging OSHA’s authority to issue the mandate. Sources in the legal community in and outside Washington are quickly looking to next steps. On Friday, Nov. 5, the Fifth Circuit Court of Appeals imposed an emergency stay on the OSHA vaccine mandate. While not an injunction, the stay is intended to allow the courts a chance to assess the level of interest in legal challenges. Now that plaintiffs have filed multiple cases in more than one federal appeals court, the next legal step is a lottery to determine which federal circuit court will hear the consolidated cases. All parties should know by Nov. 16 which court will consider the legal challenges – a critical step in determining the fate of the ETS because each court has its own set of political appointees that will interpret the action differently.
Once a court is chosen on Nov. 16, legal experts expect a relatively quick process that will seek to provide some sense of direction by Dec. 5 and whether the courts will invoke a nationwide injunction. Were the case to advance to the U.S. Supreme Court as many expect, a final decision may not come until early January but it could occur ahead of the Christmas holidays. For now, legal experts are advising employers with 100 or more workers to at least begin setting up a testing regimen and look for additional guidance from the courts in the coming weeks.