As Hall Render discussed here and here, on November 4, the Centers for Medicare and Medicaid Services (“CMS”) and Occupational Safety and Health Administration (“OSHA”) simultaneously released vaccine mandate rules. These, along with the federal contractor vaccine mandate, will require a majority of the American workforce to be vaccinated by January 4, 2022. Since then, private parties and nearly half of the states have filed or noted their intention to file lawsuits challenging the federal government’s authority to implement each of these requirements.
While litigation challenging the federal contractor requirements and CMS’s Interim Final Rule have been and will be filed in federal district courts, the challenges to OSHA’s vaccine mandate take a less familiar path. This article provides context for understanding the status of these challenges, the effect of current rulings and the path forward for parties opposing OSHA’s vaccine requirements. To be clear, the current OSHA litigation is a challenge to the November 4 OSHA Vaccine ETS; it is not a challenge to the OSHA Healthcare ETS from this past summer.
Legal Challenges to the OSHA Vaccine ETS
With the ability for OSHA to issue emergency temporary standards (“ETS”) comes a fast-track process for challenging the agency’s action. Parties may directly challenge the agency’s order in a federal Court of Appeals. Since its release last week, the OSHA Vaccine ETS has already attracted multiple legal challenges in at least five Courts of Appeals across the country by organizations and dozens of states. These include challenges in the Fifth, Sixth, Seventh, Eighth, Eleventh and D.C. Circuits.
This past weekend, the Fifth Circuit became the first Court of Appeals to act on the initial challenges. In a case including the States of Louisiana, Mississippi, Texas, South Carolina and Utah, the challengers petitioned the court to “stay” or temporarily stop enforcement of the ETS until the legality of the ETS gets determined by the Court during its expedited review. Citing “grave statutory and constitutional issues,” the Fifth Circuit temporarily put the newly released rule on hold pending an expedited briefing schedule. The Court instructed the government to respond to the request for a permanent injunction by Monday, November 8, and for the petitioners to reply by Tuesday, November 9.
But along with filing its response brief with the Fifth Circuit, the government notified the Court that it had begun special proceedings to effectively consolidate the various challenges across the country before one Circuit.
Procedural Rules for Multidistrict Litigation
Under federal law, the Judicial Panel for Multidistrict Litigation (“JPML”) may consolidate challenges to agency actions appealed directly to Circuit Courts. When, as is the case here, multiple challenges are filed in at least two courts of appeals within 10 days after issuance of the order, the agency must notify the judicial panel on multidistrict litigation.
Once notified, the panel must conduct a lottery to randomly select one federal Circuit Court of Appeals to hear the challenges. That Circuit will then conduct proceedings and rule on all the challenges to the OSHA Vaccine ETS that are pending across the country. The DOJ explained in its letter to the Fifth Circuit that it expects this lottery to proceed by November 16.
Impact of the Fifth Circuit’s Stay
The same law directing the process for consolidation of these challenges allows any Circuit before which a challenge is filed to decide on the agency action pending consolidation. Thus, the Fifth Circuit’s temporary stay remains in effect—at least within the Fifth Circuit—until either the Fifth Circuit or the receiving Circuit lifts, extends or modifies the stay. The government argued in its briefing before the Fifth Circuit that given the procedures provided for by the JPML, and the timing of OSHA’s Vaccine ETS—there is no need to continue to enforce the stay and that the decision to stay the agency’s deadlines should be left to the receiving court.
The Stay Does Not Impact Other Agency Actions
Separate from OSHA’s Vaccine ETS, CMS issued an IFR imposing a COVID-19 vaccination requirement for certain health care entities and providers. Additionally, the Biden Administration set forth requirements for federal contractors. OSHA’s Healthcare ETS from this past summer is still in effect at least until December. None of these regulatory requirements are stayed by the Fifth Circuit’s ruling on OSHA’s Vaccine ETS.
Earlier this week, the United States District Court for the District of Columbia denied a request to enjoin the Biden Administration’s federal contractor requirements. And with several similar cases pending, decisions from other District Courts will follow, as well as appeals.
Finally, CMS’s November 4 IFR has not yet been challenged in federal court—though many of the same states challenging OSHA’s Vaccine ETS have confirmed they will do so imminently.
Practical Takeaways
The fate of OSHA’s Vaccine ETS remains unclear and will depend on the ruling of the “randomly” selected federal Circuit Court—followed almost certainly by petitions to the Supreme Court of the United States. Similarly, a related but separate process will continue to play out in district courts across the country for the federal-contractor requirements and CMS’s IFR. Employers should work closely with counsel to determine the status of applicable requirements throughout this process.
For more information on these requirements and the evolving litigation related to them, please contact:
- Dana Stutzman at (317) 977-1425 or dstutzman@wp.hallrender.com;
- Drew Howk at (317) 429-3607 or ahowk@wp.hallrender.com;
- Claire Bailey at (317) 429-3608 or cbailey@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
