Current status of the OSHA mandate litigation

A federal appeals court in Cincinnati rejected the Biden administration’s request to move up deadlines in the legal challenge to its emergency shot-or-test rule that would accelerate consideration of lifting an order that froze the rule.

The U.S. Court of Appeals for the Sixth Circuit didn’t explain why it turned aside the administration’s petition to move up the briefing schedule on its motion to dissolve the Fifth Circuit’s stay. The Sixth Circuit said in its order issued late Friday that it “reserves judgment” to set deadlines for reviewing the merits of the emergency rule.

The Sixth Circuit—which has control of the consolidated case after winning a multi-circuit lottery—also turned aside an employer request to send the case to the Fifth Circuit and a union petition to transfer it to the D.C. Circuit. The court gave no rationale for rejecting those motions.

The circuit court still has two major issues to resolve before it gets to the merits of the emergency regulation: whether to lift the Fifth Circuit’s Nov. 6 stay order blocking the measure; and whether to put the case before the circuit’s full roster of active-status judges, rather than follow normal procedure and give the matter to a three-judge panel.

Parties must file responses to the administration’s motion to dissolve the stay by Dec. 7, which the government can respond to by Dec. 10.

That means the briefing will run past Dec. 6, the regulation’s first major compliance deadline. The rule calls for employers by that point to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.

The Occupational Safety and Health Administration finalized its contentious emergency standard last month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule, which is set to last just six months in its current form, applies to employers with at least 100 workers.

A cadre of Republican state attorneys general, business alliances, and business owners have sued to strike down the measure, contending OSHA exceeded its powers and hasn’t shown that there’s the requisite “grave danger” to allow it to issue such a rule without the formal notice-and-comment process.

The Biden administration is also litigating challenges to other efforts related to workplace vaccination. Federal judges have blocked the administration’s inoculation requirements for federal contractors and health care workers.

The case is In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, Order 12/3/21.