When will the court decide whether OSHA’s vax-or-test mandate is legal?

I know. You have a business to run, and all of this uncertainty about whether OSHA can force COVID-19 vaccinations or weekly testing at companies with 100 or more employees isn’t helping.

So, let’s see if we can at least clarify the timing.

But, before I do that, let’s talk turkey. Specifically, I’ve got the results of last week’s Top Thanksgiving Foods poll. Below are the top three from each category.

Protein

Roasted turkey (54.5%)
Deep-fried turkey (11.8%)
Spiral ham (10.8%)

Starch

Traditional stuffing (42.4%)
Mashed potatoes (21.3%)
Sweet potato casserole (10.8%)

Veggies

Green bean casserole (28.3%)
Cranberry sauce/relish (19.1%)
Any vegetable + bacon (12.3%)

Dessert and Booze

Pumpkin Pie (29.9%)
Any pie, not apple or pumpkin (15.6%)
Apple pie (15.3%)

All of last year’s bracket winners defended their respective titles. So did traditional stuffing as the overall champion. (I voted for smoked turkey, sweet potato casserole, Brussels sprouts, and base liquors).

OSHA ETS timing

Absent the many lawsuits filed to stop the OSHA vax-or-test Emergency Temporary Standard (ETS), employers would have had until December 6, 2021 to comply with many of the ETS requirements. Employers had until January 4, 2022 to ensure that employees who were not fully vaccinated were tested for COVID-19 at least weekly.

Except there were several intervening lawsuits, one of which resulted in the Fifth Circuit staying the ETS on November 12. Then, on November 16, all of the suits got consolidated in the Sixth Circuit, which has yet to rule.

But, now at least we have a sense of the timing.

On November 23, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay. (I’ll discuss that brief and the government’s arguments in a later post). That same day, the Sixth Circuit set a briefing schedule:

November 30, 2021: Deadline for other parties to join OSHA’s motion
December 7, 2021: Deadline for parties to file responses to OSHA’s motion
December 10, 2021: Deadline for OSHA (and other proponents) to file reply briefs

Presumably, the court will hold oral argument sometime after December 10. And, of course, the Sixth Circuit must rule on the emergency motion. Therefore, it’s more likely than not that the ETS remains stayed for at least the next two weeks.

(The government has since moved to modify the deadlines on the briefing schedule to November 29, December 2, and December 6, respectively. However, since the first deadline would be today and the court has yet to decide, I assume the court will deny the motion).

Employer takeaways:

Most employers are taking a wait-and-see approach to the ETS while the Sixth Circuit sorts it out. Just remember to abide by any applicable state or local mandates (or prohibitions). The Sixth Circuit’s ultimate decision won’t impact them. Nor will it affect the Executive Order for federal contractors governing vaccine mandates or the CMS vaccination rule. Those vaccine mandates kick in on January 4, 2022.