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OSHA Vaccination/Weekly COVID Testing ETS Court Challenges

Yesterday, there once again was a change in the ever-evolving legal landscape of the OSHA Emergency Temporary Standard (“ETS”) mandating that employers with 100-plus employees require their employees be vaccinated against COVID-19 or undergo weekly testing. On November 16, the Judicial Panel on Multidistrict Litigation conducted a lottery and assigned the consolidated cases challenging the new OSHA ETS to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.

Earlier this month, the Fifth Circuit Court of Appeals based in New Orleans, Louisiana, put a legal “stay”—or hold—on the ETS, calling it “unlawful” and “probably unconstitutional.” With the assignment of the cases to the Sixth Circuit, the newly appointed court will rule on whether to extend or dismiss the existing Fifth Circuit stay. The Sixth Circuit will likely act swiftly. The matter will most assuredly end up in the United States Supreme Court. Given the timing and the requirements of those employers of the 84 million workers impacted by the OSHA Standard, it is expected that the Supreme Court will take expedited action to rule on the legality of the ETS.

It is also anticipated that Senate and House Republicans will introduce a joint resolution of disapproval seeking to nullify the ETS under the Congressional Review Act shortly. The Congressional Review Act can be used by Congress to overturn certain federal agency regulations and actions through a joint resolution of disapproval. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the president, or if Congress successfully overrides a presidential veto, the rule at issue is invalidated. However, President Biden would almost certainly veto the resolution and overriding a veto requires a 2/3 vote in the House and Senate, a nearly insurmountable obstacle considering Democrats hold both chambers.

As AED has been advising since the announcement of the ETS, there will be many twists and turns with respect to the new mandate and the litigation. Even though the ETS is in limbo, the best course of action is to be prepared to follow the ETS as early as December 4, 2021. AED is, of course, committed to keeping you informed.

In the meantime, should you have questions, please contact AED General Counsel Michael A. Airdo at 312-506-4480 or [email protected]

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