Update on OHSA’s November 4 Ruling:
On November 12, the U.S. Court of Appeals for the Fifth Circuit issued its order and opinion, reaffirming its November 5 initial stay that halted enforcement of the emergency testing standard (ETS) issued by OSHA on November 4 (the “Mandate”). According to the Fifth Circuit, the Mandate “grossly exceeds OSHA’s statutory authority,” is “staggeringly over-broad” (and yet simultaneously under-inclusive, since “the Mandate cannot prevent vaccinated employees from spreading the virus in the workplace, or prevent unvaccinated employees from spreading the virus in between weekly tests”), appears to be a pre-textual usurpation of the various states’ police powers, and is contrary to OSHA’s previous determination that an ETS was “not necessary.” The court’s opinion explained that, because of the Mandate’s multiple deficiencies, it is likely to be found unlawful and unconstitutional on multiple grounds.
Similar challenges (filed by dozens of U.S. states, as well as individual employees and numerous companies, trade groups, civil liberties advocates, and religious organizations) are now pending in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits.1 Federal law requires agencies to notify the Judicial Panel on Multi-district Litigation of challenges filed in more than two federal appeals courts within 10 days of the issuance of an agency order. The Biden Administration is requesting that the various cases be consolidated for further review in a single circuit court, and the Panel is expected to hold a multi-circuit lottery to select the reviewing court at random “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each circuit gets a single entry no matter how many petitions were filed there and regardless of which case was filed first. It is likely that the stay issued by the Fifth Circuit would remain in effect during the review. OSHA has lost five of six challenges to its emergency rules.
If you have questions about the ETS or the pending litigation challenging its constitutionality, please contact a member of our employment team:
Lorna Hebert lhebert@outsidegc.com (617) 512-8401
Trish Lantzy plantzy@outsidegc.com (804) 683-1737
Lorna Hebert (New England team) is an employment, labor, higher education, and litigation attorney with nearly 30 years of experience handling a broad range of complex employment and labor matters. Lorna advises clients on a wide range of employment matters, including workplace investigations, dispute resolution, hiring, performance management, discipline, terminations, reorganizations, accommodations, employee benefits, wage and hour issues, discrimination claims, policies and procedures, and training.
Patricia Lantzy (Washington D.C. team) is a labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.
Natasha Lipcan (New York team) is an employment law attorney with more than 20 years of experience representing private employers in a broad range of employee-related matters. She handles a wide range of employment issues, including employment law compliance, organizational change, diversity and inclusion, employment-related agreements, arbitrations and litigations, wage and hour, workplace training and policies, and recruiting, hiring, managing and terminating employees.
1. In addition to the multiple cases consolidated in the Fifth Circuit’s expedited review, cases presently pending in other circuits include: Bentkey Services LLC v. OSHA, 6th Cir., No. 21-4027, 11/8/21; Phillips Manufacturing & Tower Co. v. OSHA, 6th Cir., No. 21-4028, 11/8/21; Indiana v. OSHA, 7th Cir., No. 21-3066, 11/8/21; BST Holdings LLC v. OSHA, 5th Cir., No. 21-6045, 11/8/21; Job Creators Network v. OSHA, 8th Cir., No. 21-3491, 11/8/21; Answers in Genesis Inc v. OSHA, 6th Cir., No. 21-4032, 11/8/21; Kentucky v. OSHA, 6th Cir., No. 21-4031, 11/8/21; Missouri v. Biden, 8th Cir., No. 21-3494, 11/8/21; Florida v. Biden, 11th Cir., No. 21-13866, 11/8/21; Southern Baptist Theological v. OSHA, 6th Cir., No. 21-4033, 11/8/21; Republican Nat’l Committee v. OSHA, D.C. Cir., 11/8/21; and Tankcraft Corp & Plasticraft Corp. v. OSHA, 7th Cir., 11/8/21.