February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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OSHA Files Emergency Motion to Dissolve the Fifth Circuit’s Stay

At 2:28 a.m. this morning, OSHA filed an (overlength) emergency motion to dissolve the Fifth Circuit’s stay of OSHA’s vaccine mandate, taking three distinct positions.  OSHA principally argues, as expected, that it is likely to succeed on the merits because, OSHA reasonably concluded that the standard is necessary to address a grave danger, the Fifth Circuit’s statutory interpretation was flawed and its “constitutional concerns” were mistaken.  OSHA also argues there was ample support for its determinations, and that the balance of equities tips in its favor.

OSHA also stakes out a middle position, arguing that the Sixth Circuit should modify the stay so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.  If nothing else, OSHA argues, the Sixth Circuit should not block its ruling giving employers the option to adopt COVID-19 policies. This would shield employers from state and local requirements that limit employers’ authority to require vaccination, face covering, or testing.

As a final fallback, OSHA asks for clarification of the Fifth Circuit’s order that OSHA “take no steps to implement or enforce” the regulation.  OSHA would like the Sixth Circuit to allow it to provide pre-enforcement information to the public about its “sometimes technical rules” so that people “can understand those rules and the agency’s reasoning.”  It also wants to take “purely internal steps,” such as drafting appropriate guidance or training call-center employees.  OSHA says this is necessary so that if the stay is lifted, “the agency can provide accurate and consistent guidance and enforcement.”

On a more procedural note: the Sixth Circuit has now consolidated all of the cases challenging the vaccine mandate into In re: OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000.  And yesterday, twenty-seven States, including Ohio, Kentucky, and Tennessee (though not Michigan) filed a petition for initial en banc (available here).  There are now several initial-en banc petitions pending in these consolidated cases, as we’ve previously discussed.  OSHA’s consolidated response to those petitions is due next Tuesday, November 30, 2021.

© Copyright 2023 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 327

About this Author

Shams Hirji Appellate Attorney Squire Patton Boggs Cincinnati

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,...

Colter Paulson Appellate Litigation Attorney Squire Patton Boggs Cincinnati, OH
Of Counsel

Colter Paulson has significant litigation experience, specializing in appellate litigation. He has successfully argued appeals before federal and state appellate courts and has extensive experience leading teams of associates in complex litigation, including multidistrict litigation and class actions.

Colter represents clients in litigation involving consumer financial services, medical devices, healthcare and manufacturing. His international experience includes cross-border litigation on behalf of clients in Asia, South and Central America, and the Middle East. His experience also...