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OFCCP Weekly Review: November 2021 # 4 | Association of Direct Employers

Tuesday, November 16, 2021: Private employers forced to remain vigilant as changes to COVID-19 vaccine mandates occur daily / OSHA suspended its own temporary emergency standard

Employers are to set a daily Google Alert that appears to determine the status of government-mandated COVID-19 vaccine warrants for employees. As a result of the numerous lawsuits filed in response to the Biden administration’s vaccination warrants (some of which we Underline last week), several important developments have occurred over the past week that employers should be aware of when planning the next steps in their COVID-19 vaccination policy.

The United States Court of Appeals Fifth Circuit order suspending OSHA ETS has sparked a complex chain of legal events. First, as we reported last week, the Fifth Circuit Court of Appeals issued a order maintaining the Federal Occupational Safety and Health Administration (OSHA) Temporary Emergency Standard (“ETS”) (which aims to make private employers subject to the Occupational Safety and Health Act (“OSH Act”) and with 100 or more employees to require their employees to either get fully vaccinated against COVID-19, or test them weekly, or terminate their employment.

Second, given the wave of lawsuits against OSHA ETS in the 12 federal appellate courts, OSHA was required by law to notify the Judicial College on Multidistrict Litigation (“Panel”) of the existence of multiple lawsuits challenging the same agency order.

Third, following this opinion, in order to preserve judicial resources, the Judicial College immediately exercised its authority in accordance with Panel rules 25.1 to 25.6. The Judicial College then immediately resorted to an age-old random selection method and quickly selected the United States Court of Appeals for the Sixth Circuit (Cincinnati) to first consolidate and then hear all remaining lawsuits challenging the OSHA ETS. For those wondering what technological algorithm the Panel used to select the Sixth Circuit, the Panel organized, as always by tradition, a lottery by shooting a ping-pong ball from a spinning drum (not unlike the mechanism used in any local bingo hall in America).

Fourth, the next step will be for the Sixth Circuit to consolidate all pending (and future) OSHA ETS complaints into the Sixth Circuit collection of complaints, all proceeding under a single legend.

Fifth, after the Sixth Circuit receives all complaints and registers them, it will appoint a senior trial attorney who will be the representative of the many attorneys and law firms representing the hundreds of litigants challenging the OSHA ETS.

Sixth, once all procedural niceties had been set aside, the entire Sixth Circuit bench sat in bench (i.e. the entire tribunal, currently made up of 11 judges that Republican presidents have appointed and five judges that Democratic presidents have appointed) will decide what kind of briefing and arguments (if any) the sixth circuit wishes and according to what schedule. This briefing will indicate whether to maintain or lift the order of the Fifth Circuit to maintain the rule.

Seventh, in a way that the Sixth Circuit will identify, it will then decide the issues raised in all complaints and issue an order as to the validity of the OSHA ETS. Parties whose claims have been grouped together in the action before the Sixth Circuit may request that their particular case be transferred to another circuit. As of this writing, neither party has requested a transfer. (Too early).

OSHA suspended its ETS on its own initiative: Finally, later on November 16, OSHA itself announced (via an unpublished and undated page suddenly appearing on its website) that it to suspend the implementation and application of its emissions trading system pending future developments in litigation. While noting that it remained “confident in its authority to protect workers in an emergency,” OSHA noted that its action resulted from the Fifth Circuit order that OSHA “… takes no action. to implement or apply the ETS until further notice of the court ”. For now, OSHA’s announcement alerts private employers with 100 or more employees that they are no longer subject to the compliance requirements associated with the ETS until the ongoing litigation reinstates the ETS , if applicable. Thus, private employers now have some leeway over the ETS (now) deadline of January 4, 2022 (as delayed) to implement a vaccination mandate program.

OSHA has not and will not suspend the ongoing public comment period on its ETS. So, if you want to comment on the ETS, you must do so on the original commenting schedule originally posted by OSHA. OSHA made this clear on its undated website page (published November 16, 2021) announcing the suspension of its ETS:

“Written comments on any aspect of the ETS should be submitted by December 6, 2021 in file number OSHA-2021-0007. Written comments on determining information collection as described in ETS Preamble VK [2021-23643] must be submitted by January 4, 2022 in file number OSHA-2021-0008.

On November 17, 2021, attorneys for Labor Secretary Marty Walsh became nervous and pressured him to sign an OSHA ETS “ratification”. Concerned that they had opened a procedural attack channel against the OSHA ETS since the Secretary had not initially signed the important OSHA ETS and the USDOL had NOT published the ratification in the Federal Register, the USDOL did an about-face and suddenly published in the Federal Register a notification of ratification by the OSHA ETS Secretary of Labor.

Fund: On November 12, 2021, the Secretary of Labor ratified the provisional final rule of November 5, 2021 codifying the OSHA ETS. See Provisional final rule, Vaccination and COVID-19 test; Temporary Emergency Standard (November 5, 2021). Here is USDOL’s official rationale (otherwise known in vernacular language in legal circles as “Cover Your Butt”) for posting the OSHA ETS Secretary’s “Ratification” in the Federal Register:

“The department is now releasing the ratification in the federal registry out of an excess of caution. Neither the ratification nor the publication is a declaration that the ratified action would be invalid in the absence of the ratification, whether or not it is published.

Expect to see other courts soon to ban all other vaccination warrants. Although OSHA’s announcement only applies to its ETS applicable to private employers subject to the OSH Act and employing 100 or more employees, employers subject to the remaining mandate of the guidelines and rules on OSH. vaccines that various other components of the Biden administration have released may soon find themselves in a similar situation. Specifically, the legal arguments adopted by the Fifth Circuit in its order suspending the OSHA ETS are similar to those presented in the lawsuits against the various other warrants. Federal contractors and healthcare establishments benefiting from Medicare and Medicaid funds could therefore soon find courts canceling the Safer Federal Workforce Task Force COVID-19 Workplace Safety Advice and the Centers for Medicare & Medicaid Services’ Provisional final rule on similar legal bases.

This is especially likely given the procedural flaws (i.e. lack of public notice and comment) weighing on the Biden administration’s guidelines and interim final rule. These procedural failures are more obvious and glaring than the alleged legal weaknesses of the OSHA ETS (which we first discussed here). In addition, many of the lawsuits against the Working Group Guidelines and the CMS Interim Final Rule are before courts with a judicial philosophy similar to that of the Fifth Circuit. These include prosecutions in the Eastern District of Missouri, the Southern District of Florida, and the Southern District of Texas (which itself falls under Fifth Circuit jurisdiction).

Thus, the only point to take away from court decisions is the realization that a private employer’s own mandates, not mandated by the federal government, remain the most legally authorized means by which employers can demand the vaccination of their employees. employees.