Capitol Correspondence - 11.29.21

OSHA Vaccination ETS Challenge Moves Forward as Biden Administration Asks to Lift Stay

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Last week, the Biden administration petitioned the U.S. Court of Appeals for the Sixth Circuit to lift the stay on the Occupational and Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure their employees are fully vaccinated against COVID-19 or submit to weekly testing. The Sixth Circuit has jurisdiction over the litigation challenging the OSHA ETS, and it will decide whether to lift the stay on enforcement ordered by the U.S. Court of Appeals for the Fifth Circuit, which was granted on November 6.

On Tuesday, the Biden administration filed its emergency motion to dissolve stay, arguing that the stay should be lifted because OSHA has not exceeded its authority under the U.S. Constitution to protect workers through its regulation. It also argued that if the stay is not lifted, it should be modified to require a masking-and-testing requirement to remain in effect while the litigation is pending. The following day, the administration filed an additional motion asking the Sixth Circuit to expedite the briefing schedule for the case. As the schedule is currently set, the court is not expected to rule on the case until after December 10—four days after the deadline by which employers are required to comply with the first phase of the ETS.

In addition to the federal government’s filings last week, other challengers—including states with Republican attorneys general and the Republican National Committee—have asked the Sixth Circuit to hear the case en banc, rather than with the standard three-judge panel. Hearing the case en banc would mean that all the active Sixth Circuit judges would review the case, ensuring that the case is heard by the Republican-appointed judges on the bench. The Biden administration has until November 30 to argue against en banc review.