On Nov. 6, 2021, the court agreed to stay the mandate pending briefing and expedited judicial review.
The court considered four factors in its review:
- Did the applicants provide a strong case that would likely succeed on merits?
- Will the applicants be “irreparably injured” absent a stay?
- Will the stay “substantially injure” the other parties in the proceedings?
- Where does the public interest lie?
Having conducted the review, the court reaffirmed its initial stay.
The ETS is “fatally flawed,” stated the judges in the court document. Explaining OSHA’s ETS authority “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only ‘limited situations.’” They went on to say that this mandate is anything but that.
In fact, they said it was the exact opposite.
“Rather than a delicately handled scalpel, the mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the mandate purports to address.”
OSHA is to take no further action to implement or enforce the vaccine mandate.
Employers don’t have to follow the mandate right now. However, you might want to keep moving forward with your planning. This court order doesn’t remove the mandate from the table.
Since appeals are pending in 10 other Courts of Appeals, the legal challenges will be entered in a multi-circuit lottery. The Judicial Panel on Multidistrict Litigation will conduct the lottery, expected to take place as soon as today – or at least this week!
The selected federal court will hear the consolidated litigation.
“If the 5th Circuit get picked, it’s clear that the ETS is in trouble,” states legal authority JD Supra. “If a different circuit is chosen, the challenge starts afresh because that court will have the power to modify or nullify the stay issued by the 5th Circuit.”
So, as you can see, it’s anyone’s game.
We’ll keep you posted on who the lottery winner is!