OSHA COVID-19 ETS – Sixth Circuit December 3, 2021 Order Confirming Briefing Schedule and Resolving Procedural Motions
December 6, 2021On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. Our blog post on the ETS is here. As discussed below, the U.S. Court of Appeals for the Sixth Circuit recently issued an order resolving various procedural motions and clarifying its scheduling order regarding the legal challenges to the ETS, which requires all briefing to be complete on December 10, 2021.
Lawsuits challenging the legal authority of the ETS were filed immediately. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), anyone “adversely affected” by an ETS issued by OSHA may challenge it within 60 days in the appropriate federal appeals court. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS, pending briefing and expedited judicial review. On November 12, 2021, the Fifth Circuit reaffirmed its stay in a 22-page opinion, determining that the petitioners had demonstrated the required elements for a stay pending judicial review. The Court further ordered OSHA to “take no steps to implement or enforce the [ETS] until further court order.” Our blog post on the Fifth Circuit’s opinion is here.
Numerous other petitioners challenged the ETS in other federal appeals courts, and all legal challenges were consolidated before the U.S. Court of Appeals for the Sixth Circuit on November 16, 2021. On November 23, 2021, the government filed a motion to dissolve the Fifth Circuit’s stay of the ETS, and the Sixth Circuit set a briefing schedule for responses and reply briefs. On December 3, 2021, the Sixth Circuit issued an order resolving the various procedural motions.
First, given the Fifth Circuit’s stay and the government’s November 23, 2021 motion to dissolve the stay, the Court denied as moot previously filed motions to stay the ETS and related motions.
Second, the Court clarified its November 23, 2021 scheduling order, which set the briefing schedule for the government’s motion to dissolve the Fifth Circuit’s stay. Per the scheduling order, responses to the government’s motion are due no later than December 7, 2021, and a consolidated reply is due no later than December 10, 2021.
Third, the Court denied the government’s motion to amend the briefing schedule, which sought to expedite by four days the briefing schedule for the government’s motion to dissolve the stay. The Court encouraged the parties responding to the government’s motion to group their briefs by joinder, but did not impose any such requirement.
Fourth, the Court denied motions to transfer the case to the Fifth Circuit and to the U.S. Court of Appeals for the D.C. Circuit.
Fifth, the Court denied a motion to “hold the case in abeyance” pending a decision regarding a petition for initial hearing en banc, again pointing the parties to the scheduling order.
Sixth, the Court denied as moot motions for leave to file an amicus curiae brief and related motions supporting the previously filed motions for stay (which were also denied as moot). The Court instead advised any such amici to file notices designating their amicus briefs as responses to the government’s motion to dissolve the stay. The Court then granted motions for leave to file amicus brief in support of the government’s motion to dissolve the stay.
Finally, the Court addressed various motions to dismiss a party, add parties, and intervene.
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.
Lawsuits challenging the legal authority of the ETS were filed immediately. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), anyone “adversely affected” by an ETS issued by OSHA may challenge it within 60 days in the appropriate federal appeals court. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS, pending briefing and expedited judicial review. On November 12, 2021, the Fifth Circuit reaffirmed its stay in a 22-page opinion, determining that the petitioners had demonstrated the required elements for a stay pending judicial review. The Court further ordered OSHA to “take no steps to implement or enforce the [ETS] until further court order.” Our blog post on the Fifth Circuit’s opinion is here.
Numerous other petitioners challenged the ETS in other federal appeals courts, and all legal challenges were consolidated before the U.S. Court of Appeals for the Sixth Circuit on November 16, 2021. On November 23, 2021, the government filed a motion to dissolve the Fifth Circuit’s stay of the ETS, and the Sixth Circuit set a briefing schedule for responses and reply briefs. On December 3, 2021, the Sixth Circuit issued an order resolving the various procedural motions.
First, given the Fifth Circuit’s stay and the government’s November 23, 2021 motion to dissolve the stay, the Court denied as moot previously filed motions to stay the ETS and related motions.
Second, the Court clarified its November 23, 2021 scheduling order, which set the briefing schedule for the government’s motion to dissolve the Fifth Circuit’s stay. Per the scheduling order, responses to the government’s motion are due no later than December 7, 2021, and a consolidated reply is due no later than December 10, 2021.
Third, the Court denied the government’s motion to amend the briefing schedule, which sought to expedite by four days the briefing schedule for the government’s motion to dissolve the stay. The Court encouraged the parties responding to the government’s motion to group their briefs by joinder, but did not impose any such requirement.
Fourth, the Court denied motions to transfer the case to the Fifth Circuit and to the U.S. Court of Appeals for the D.C. Circuit.
Fifth, the Court denied a motion to “hold the case in abeyance” pending a decision regarding a petition for initial hearing en banc, again pointing the parties to the scheduling order.
Sixth, the Court denied as moot motions for leave to file an amicus curiae brief and related motions supporting the previously filed motions for stay (which were also denied as moot). The Court instead advised any such amici to file notices designating their amicus briefs as responses to the government’s motion to dissolve the stay. The Court then granted motions for leave to file amicus brief in support of the government’s motion to dissolve the stay.
Finally, the Court addressed various motions to dismiss a party, add parties, and intervene.
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.