Ping-Pong Ball Reveals That The Sixth Circuit Will Review OSHA's Vaccination-Or-Test Mandate

A pick from a drum of ping-pong balls has determined which court will get to review OSHA’s vaccinate-or-test Emergency Temporary Standard (“ETS”) mandate for employers with 100 or more employees. After a lottery was held on Tuesday, the Sixth Circuit Court of Appeals was randomly chosen to render a decision governing all cases pending in the federal courts. This is the next step before the case likely ends up before the U.S. Supreme Court for final review.

The Sixth Circuit is a favorable draw for challengers of the mandate. The Sixth Circuit is made up of 20 Republican-appointed judges and only 8 Democrat-appointed judges. While not dispositive, political appointment of judges may indicate how a three-judge panel of the Sixth Circuit might rule on the OSHA ETS.

Of note, last Friday, on November 12, the Fifth Circuit affirmed its initial stay and barred OSHA from implementing or enforcing the ETS until further court order. OSHA then stated that while it “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.”

The lottery has essentially restarted litigation on the ETS because the Sixth Circuit could modify or nullify the Fifth Circuit stay. Whatever the outcome in the Sixth Circuit, the losing party is likely to appeal to the U.S Supreme Court. In other words, litigation may still be pending by the December 6 and January 4 ETS deadlines.

While it seems unlikely that employers will need to comply with the ETS by these deadlines, there is still a chance that OSHA will ultimately prevail. Employers should consider beginning to develop vaccination and testing policy templates, which could include plans on taking inventory of vaccinated employees, collecting vaccine cards, and even preparing for roadblocks such as testing kit shortages in the event the ETS is suddenly upheld.

Federal contractors and healthcare employers must keep in mind that the OSHA ETS legal challenges do not impact the Biden Administration’s vaccine mandate for federal contractors, which has now been extended to January 18, 2022, or the rule on healthcare worker vaccinations.