What to do while federal COVID-19 vaccination is up in the air? (And why is a ping-pong ball involved?)
Here’s the relevant timeline as of this writing: On November 4, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) requiring employers of 100 or more employees to meet specified standards regarding COVID-19 safety. On November 6, 2021, the Fifth Circuit Court of Appeals issued a temporary stay blocking nationwide implementation of the ETS, citing “grave statutory and constitutional issues” raised by petitioners. On November 12, the Fifth Circuit extended the stay and ordered OSHA not to implement or enforce the ETS.
But the Fifth Circuit won’t have the final say. Federal rules call for a Multidistrict Litigation Panel to consolidate litigation that spans across multiple circuits into one unified action. Since suits supporting and opposing the ETS have been filed in every circuit, the panel had to hold a selection process to select the circuit to address the claims. How did the panel pick the circuit to hear the consolidated claims?
On November 16, a clerk of the US Judicial Panel on Multidistrict Litigation used a wooden raffle drum and twelve ping-pong balls, one for each of the twelve circuits. The clerk randomly selected the Sixth Circuit, which is widely regarded as one of the most conservative circuits in the nation. The Cincinnati-based Sixth Circuit (including senior judges) is comprised of twenty-six judges; twenty have been appointed by Republican presidents. As for the Sixth Circuit’s full-time judges, eleven of sixteen were Republican appointees. It is expected that the court will hold an initial en banc hearing, which is highly unusual, rather than an initial three judge panel.
OSHA has asked the Sixth Circuit to dissolve the Fifth Circuit’s stay, but with a filing deadline of December 10, it remains unclear whether the Sixth Circuit will act before Christmas. As of this writing, the ETS is stayed and is not in effect. Regardless, it is reasonable to expect that the Sixth Circuit will continue the stay of the ETS for the same reasons as the Fifth Circuit, that the losing parties will appeal and that the Supreme Court will not decide the issue until after the winter holidays.
Meanwhile, affected employers should prepare for the ETS as if it will take place but wait to implement its measures until the final judicial outcome is certain. This means having a vaccination and masking policy, a reporting and record keeping policy for records, and other technical standards in place as these things will be difficult to develop overnight. This includes being prepared if the stay is lifted and the ETS becomes effective.