For a brief moment, large swaths of the U.S. employment law community have their eyes glued to one particularly lengthy court docket: BST Holdings, LLC, et al v. OSHA, et al, the consolidated proceedings on the Occupational Safety and Health Administration's COVID-19 vaccination Emergency Temporary Standard now before the 6th U.S. Circuit Court of Appeals.
Since the case's assignment, the 6th Circuit has established a timeline for parties to file motions to modify, revoke or extend the stay on the ETS placed by the 5th Circuit. As expected, multiple parties have filed motions in the suit, creating a situation that is rarely seen in the circuit court context. "It's kind of all over the place," said Andrew MacDonald, partner at Fox Rothschild, "and the court doesn't have any power to stop the parties from filing motions."
That list of filings includes an OSHA motion to amend the schedule for the court's stay and move several of the deadlines forward. The agency's opponents have filed an opposition to that proposal, but the 6th Circuit so far has not indicated it will amend its timeline.
Key dates for the OSHA ETS and the consolidated suit against it
Nov. 30, 2021
Deadline for parties wishing to file motion to modify, revoke or extend the ETS' stay.
Dec. 7, 2021
Deadline for responses to any such motions. OSHA's Nov. 24 motion proposed moving this deadline forward to Dec. 2.
Dec. 9, 2021
This date marks 30 days from the day of the ETS' publication, and it is the deadline by which employers with 100 or more employees would need to implement a mandate so that workers could be fully vaccinated against COVID-19 by Jan. 4, 2022.
Dec. 10, 2021
Deadline for parties to file replies to the responses. OSHA's Nov. 24 motion proposed moving this deadline forward to Dec. 6.
Jan. 4, 2022
Under the ETS, the deadline by which employers with 100 or more employees would need to set weekly testing requirements for workers who are not vaccinated against COVID-19.
Of all the motions filed, however, perhaps the most important is OSHA's motion to dissolve the 5th Circuit's stay on the ETS, according to Sean Marotta, partner at Hogan Lovells; "Keep an eye on the stay, because the stay will probably be the thing that determines whether this goes into effect at all."
The 6th Circuit could make a decision on OSHA's motion at any point after Dec. 10, MacDonald said, but the timing is such that the agency would not be able to enforce the ETS on time. "OSHA can't enforce this until the court says otherwise," he continued.
Even after that decision, many expect the losing side to appeal to the U.S. Supreme Court. Both Marotta and MacDonald said that the High Court could hear an appeal of the 6th Circuit's decision as part of its so-called "shadow docket." That would mean the Supreme Court would quickly render a decision on the issue without a full briefing or oral arguments, said MacDonald, but he added that the court may choose not to do so.
Furthermore, the Supreme Court would have to go "pedal to the metal" in its review if it were to issue a ruling on the ETS before the standard's May 4, 2022, expiration date, Marotta said. At that point, the ETS would either no longer be in effect, or OSHA would institute a permanent standard.
These factors have left employers with an "extremely difficult situation," said Marotta, particularly those operating in jurisdictions that have limited the ability of employers to enforce vaccination mandates and those operating multiple job sites across state lines.
But most, if not many, employers who want to implement a mandate have already done so regardless of the ETS, said MacDonald; "There is nothing in the law stopping most employers from issuing their own vaccine mandate through the authority of being an employer." OSHA's action also may further encourage employers to adopt mandates even if it never takes effect.
"Employers should just monitor the situation and not rush out any mandates without checking whether they need to or want to," MacDonald said.