Our colleague Colter Paulson at Squire Patton Boggs’ Sixth Circuit Appellate Blog provides an update on the status of the lawsuits challenging OSHA’s Emergency Temporary Standard on COVID-19 vaccination and testing.

Employers across the United States are wondering whether they need to comply with OSHA’s original, rapidly-approaching December 6th and January 4th deadlines.  And while no-one yet knows with 100% certainty, probably including the judges themselves, a few things seem clear from the Sixth Circuit’s approach in this consolidated appeal.  The Circuit has not ordered parties to comply with the kind of incredibly-rushed deadlines typically seen in elections appeals, as some parties have asked for.  Nor has it issued any precipitous decisions on the merits, deciding weighty constitutional matters before the issues are fully briefed.

The Circuit has instead taken a middle course:  it has ordered accelerated but reasonable deadlines on critical issues and allowed all interested parties to make their arguments.  As we’ve previously explained, one of the court’s early orders regulated briefing on whether the court should take the consolidated petitions initially en banc.  Per that schedule, the Government filed its response today, arguing that “complex and time-sensitive issues are more efficiently considered by a three-judge panel, and not the full sixteen-member Court.”  (The schedule did not explicitly allow reply briefs on that issue; in our experience that means that they will be accepted, but might be ignored.)  We expect an order on this crucial issue in the coming days, likely before we hear anything on the merits.

Similarly, the court ordered briefing on OSHA’s motion to dissolve the Fifth Circuit’s stay on enforcement, giving all parties until today to file their motions, with responses due December 7, and any replies by December 10.  That decision will almost certainly require a preview of the court’s views on the enforceability and constitutionality of OSHA’s vaccine mandate.  By contrast, the court has not set any particular deadlines on the pending motions to send the consolidated petitions to the Fifth Circuit or D.C. Circuit.Given the court’s approach so far, our guess is that the Sixth Circuit will not make any decision on the stay, or the constitutionality of the mandate, until after the December 10th briefing deadline.  And even if the Circuit overturns the stay, it may order OSHA to change its deadlines rather than allow the agency’s Emergency Temporary Standard to suddenly “pop” back into being and require immediate compliance from employers.  We will also be watching the court’s approach to a recent motion to compel production of a “complete administrative record,” which was filed this morning by twenty-seven States.  Granting that motion could indicate that the Sixth Circuit intends to roll up its proverbial sleeves and make a close, factual inquiry into the reasoning and basis for OSHA’s decision.

As usual, we’ll continue watching these issues closely.

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