A lot has happened since President Biden’s OSHA vaccination rule was published on November 5th [https://conta.cc/3HjqdUd]. Here is the latest on this very fast moving development.
Following the issuance of a federal court injunction ordering OSHA to halt any steps to implement the rule, Cal/OSHA has put the brakes on creating California’s version of the rule until the dust finally settles with the federal litigation against OSHA.
The Fifth Circuit Injunction.
On November 5th , the very same day the OSHA rule was issued, the Fifth Circuit Court of Appeal in New Orleans issued an Order barring OSHA from implementing the rule. Then, on November 12th, that very same court announced that the injunction will remain in place until the Court has had adequate time to review the merits of the case. The Court’s ruling is a veritable smackdown of the Biden Administration’s use of OSHA’s emergency rulemaking powers, referring to the rule as an illegal “workaround” for the Biden administration to get its vaccination policy moving.
Importantly, the Firth Circuit also ordered that “OSHA take no steps to implement or enforce the mandate until further court order”. In doing so, the Fifth Court stated that the injunction was necessary because it was very likely that the mandate eventually will be struck down for various reasons having to do with OSHA’s lack of authority to use its power to implement “temporary” emergency standards in cases like this. For support, the Court noted that in OSHA’s 50 year history, OSHA has issued just 10 of these emergency rules. Of those, 6 were challenged in court and only 1 of the 6 survived legal challenge.
OSHA”s Reaction to the Fifth Circuit ruling.
OSHA announced today that the agency has suspended enforcement of its requirement that large employers nationwide ensure their workers are either vaccinated against COVID-19 or tested weekly for the virus by January 4th. OSHA also added the following statement on its website:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit
granted a motion to stay OSHA's COVID-19 Vaccination and Testing
Emergency Temporary Standard, published on November 5, 2021.
The court ordered that OSHA "take no steps to implement or enforce
the ETS until further court order." 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.
Essentially, OSHA has put enforcement of the vaccine rule on hold until a final outcome in the case.
The Sixth Circuit is the Lottery Winner
The Fifth Circuit was not alone in getting petitions challenging the vaccination rule. In fact, cases were brought in 11 other districts. Under a wonky set of federal court procedural rules, the courts held a lottery earlier this week to decide which court would take over all of the cases. The “lottery” gave the cases to the Sixth Circuit in Cincinnati. The cases will go to a panel of three judges. Notably, the majority of judges in that circuit were appointed by Republican presidents. The Sixth Circuit has 20 judges appointed by Republicans and six appointed by Democrats, tilting the odds towards a GOP majority panel and potentially giving the vaccination rules opponents an advantage. It’s also notable that nearly a third of the circuit’s active judges were appointed by former president Trump. According to conventional wisdom, Republican-appointed judges are apt to be more skeptical of the vaccine rule, especially given partisan differences on the issues of administrative agency power and the need for vaccine mandate.
No matter what happens at the circuit court level, most observers predict that the U.S. Supreme Court is likely to have the final say on OSHA's vaccinate-or-test emergency temporary standard. Yet, the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.
Cal/OSHA Response to the federal court activity.
By law, once OSHA issued its vaccination rule, Cal/OSHA became obligated to issue a rule of its own within 30 days which is “at least as restrictive” as the new OSHA rule.
In light of the court activity halting enforcement of the federal rule, Cal/OSHA had scheduled a meeting for November 18 to discuss how to proceed. The agency just announced that plans for a Cal/OSHA vaccination rule have been put on hold. The agency cited the Order from the U.S. Court of Appeals for the Fifth Circuit on Nov. 12 that federal OSHA “take no steps to implement or enforce” the emergency temporary standard “until further court order” as its reason for canceling consideration of the standard.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP