At 2:28 a.m. this morning [November 23, 2021], 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 review (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.

Stay tuned for further updates.