OSHA ETS Webinar Delayed

We have been working with industry and professional organizations to provide a free webinar on the OSHA Emergency Temporary Standard on the COVID-19 vaccine that was finalized on November 5, 2021, which applies to employers with 100 or more employees (“ETS”), as well as Iowa’s new COVID-19 vaccine waiver law. We developed a free webinar that would feature three of our Labor and Employment attorneys and John Forbes, a pharmacist and State Representative in the Iowa House of Representatives.

However, the ETS has been stayed nationwide and OSHA has been barred from enforcing the rule. Litigation may result in the ETS being completely or partially struck down, and we cannot predict the outcome of the litigation right now. Because of the stay, we have decided to temporarily delay this webinar while we wait for further developments in the pending litigation.

Some companies may decide to move forward with a mandatory vaccination, mandatory testing-and-masking, or hybrid policy, anticipating that the ETS will be upheld, as issued. Those companies should study OSHA’s website about the ETS, which is still available as of this writing. It provides helpful resources, including policy templates, FAQs, Fact Sheets, and the rule itself. If you have questions, you are encouraged to consult with your Dickinson Law attorney, or your organization’s labor and employment law counsel. If your organization does not have labor and employment law counsel, you can contact us for assistance. Dickinson Law attorneys slated to speak at our webinar are named at the end of this email along with their contact information.

Those who are curious about the legal challenges and process can read on to learn more. Otherwise, watch your emails for future announcements about an upcoming training opportunity.

What’s Going On With the Litigation?

The ETS was first temporarily stayed by the Fifth Circuit Court of Appeals on November 6—the same day the ETS was finalized by publication in the Federal Register. On November 12, that stay was extended. In this order, the Fifth Circuit explicitly barred OSHA from enforcing the ETS nationwide until a decision is made after a preliminary injunction hearing.

As of this writing, litigation over the ETS has been filed in all 12 federal appellate courts. To conserve judicial resources, and avoid confusion that might be caused by different rulings in different circuits, the law calls for bringing these lawsuits together into one court. The federal agency whose rule is being attacked (here, DOL/OSHA) initiates the consolidation process by notifying the Judicial Panel on Multidistrict Litigation (“Panel”) of all of the lawsuits filed to challenge the ETS in the 10 days after the rule became final. That deadline is today, November 16. Then, the Panel, which controls multicircuit litigation as well as multidistrict litigation, randomly chooses the federal circuit court where all the cases will be brought together and decided.

Each circuit court where a lawsuit has been filed gets one chance to be randomly selected for consolidation, no matter how many lawsuits were filed there. The Panel designates a deputy or random selector who chooses the winning court from a “drum.” Yes, the rule explicating requires a drawing from a “drum”— think old-school BINGO.

A consolidation order is then issued by the Panel, transferring all of the cases to the chosen circuit court of appeals, also called the transferee court.

Any stay issued by a federal circuit court before the consolidation order is issued—such as the one issued by the Fifth Circuit on November 12—can be modified, revoked, or extended by the transferee court. Whether the stay from the Fifth Circuit holds depends on which court is the transferee court and how that court views the arguments of the parties.

If the Fifth Circuit is selected, the stay will remain, as is. OSHA would face a near-impossible uphill climb to preserve the ETS in the Fifth Circuit because that court’s November 12^th Order was a scathing rebuke of it.

If you have questions about the ETS, or other COVID-19 laws, you can contact one of our firm’s attorneys listed here.

Jill Jensen-Welch            515-246-4536

Bryan O’Neill                  515-246-4549

Sierra McConnell           515-246-4522