May 26, 2022

Volume XII, Number 146

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OSHA Announces Intent to Withdraw ETS

The saga of the OSHA ETS litigation has (nearly) come to an end.  Yesterday, the DOJ filed a motion in the Sixth Circuit to dismiss as moot all of the consolidated petitions challenging OSHA’s vaccine-or-test mandate.  The DOJ informed the Sixth Circuit that, “[a]fter evaluating the [Supreme] Court’s decision, OSHA decided to withdraw the Vaccination and Testing ETS as an enforceable emergency temporary standard.”  OSHA noted, however, that “it has left the proposed rule in place as part of a separate, ongoing rulemaking process that imposes no obligations and is not subject to challenge.”

OSHA’s decision to withdraw the ETS is not surprising.  As we noted in a previous post, although the Supreme Court technically only considered whether to temporarily stay the ETS, the reasoning of the Court’s decision effectively decided the merits.  A majority of the Court made clear that if OSHA were to have any chance at enforcing the ETS, Congress would need to clearly delegate OSHA that authority, and Congress had not done so in the OSH Act.  That legal flaw doomed the ETS absent congressional action.

But although the DOJ may have lost this battle, it has not lost the war on mandates generally.  After all, the same day that the Supreme Court stayed the OSHA mandate, it lifted injunctions that had been blocking enforcement of the CMS mandate.

And today in the Sixth Circuit, the DOJ and Ohio will argue against each other again in a case involving a so-called tax mandate.  There’s also the federal contractor mandate, which EDKY Judge Vantatenhove preliminary enjoined throughout Kentucky, Ohio, and Tennessee.  The Sixth Circuit recently declined the DOJ’s request to stay that injunction.

So, mandates in the Sixth Circuit (and elsewhere) live on, even if temporarily halted, and so does the litigation that comes with them.  Whatever the mandate, whichever the case, you can be sure the Blog will be covering all the interesting Sixth Circuit developments.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 26
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About this Author

Shams Hirji Appellate Attorney Squire Patton Boggs Cincinnati
Associate

Shams Hirji focuses his practice on appeals and critical motions. He has briefed numerous appeals in federal and state courts and has presented oral argument in the Sixth Circuit, the Ohio Supreme Court and the Ohio Courts of Appeals. Shams also maintains an active trial-court practice, ensuring that complex legal issues are resolved in favor of clients as early as possible and, if necessary, preserved for appellate review.

Before joining the firm, Shams served as a deputy solicitor general in the Office of the Ohio Solicitor General. As deputy solicitor general,...

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