On Tuesday, November 16, 2021, the Sixth Circuit Court of Appeals was chosen as the “winner” of a lottery to hear the consolidated legal challenges to the Biden administration’s “vaccine-or-test” rule. The Occupational Safety and Health Administration (“OSHA”) issued the “vaccine-or-test” rule earlier this month. The rule mandates that employers with 100 or more employees must require unvaccinated employees to undergo weekly testing for COVID-19.

Following OSHA’s announcement of the “vaccine-or-test rule,” opponents swiftly filed lawsuits challenging the rule in twelve circuit courts across the country. Under federal law, when multiple lawsuits addressing “one or more common questions of fact” are filed across multiple districts, the petitions are consolidated to be heard by one circuit court that is chosen at random. Each of the circuit courts where challenges have been filed receives one “entry” in the lottery. The “winner” is then selected at random to hear the consolidated petitions. As a result of Tuesday’s lottery, the Sixth Circuit was chosen to hear the combined challenges to the “vaccine-or-test” rule. Accordingly, the Sixth Circuit’s decision will apply nationwide.

The Sixth Circuit is based in Cincinnati, Ohio. A three-judge panel – yet to be determined – will hear the multidistrict case.

The “Vaccine-or-Test” Rule

OSHA announced the “COVID-19 Vaccination and Testing; Emergency Temporary Standard” for employers – referred to by many as the “vaccine-or-test” rule – on November 4, 2021. The rule became effective on November 5, 2021. Under the “vaccine-or-test” rule, employers with 100 or more employees must either require all employees to get vaccinated against COVID-19 or require unvaccinated workers to undergo weekly testing for COVID-19 by January 4, 2022.

The “vaccine-or-test” rule also requires employers to provide up to four hours of paid leave for employees to receive each primary dose of a COVID-19 vaccine. Additionally, covered employers must provide employees who receive a vaccine with “reasonable paid sick leave” to recover from side effects. Further, covered employers must determine the vaccination status of their employees and record that information.

The rule does not, however, require employers to cover the costs of weekly COVID-19 testing or face coverings for unvaccinated employees. Nonetheless, employers may be obligated to bear these costs for other reasons, such as other applicable laws, regulations, or collective bargaining agreements. Finally, the rule mandates that all employers must require unvaccinated employees to wear a face covering indoors or when sharing a vehicle with another person for work-related purposes by December 6, 2021.

Fifth Circuit’s Stay Prior to Lottery¬†

Prior to the consolidation of the challenges to the “vaccine-or-test” rule, the Fifth Circuit issued a stay blocking the rule from taking effect. The Fifth Circuit’s November 12, 2021 decision ordered OSHA not to take any additional steps to implement or enforce the “vaccine-or-test” mandate until further judicial review of challengers’ requests to permanently enjoin the rule from taking effect is complete.

Following the result of Tuesday’s lottery, the Sixth Circuit will have the authority to decide whether to uphold the Fifth Circuit’s stay and ultimately whether to permanently enjoin OSHA from implementing the “vaccine-or-test” rule.

Crabbe, Brown & James, LLP is closely monitoring litigation across the country concerning employer vaccine mandates to keep our clients up-to-date on the latest developments. Our team understands the critical importance of keeping employers and their employees informed about the rapidly evolving legal landscape that has emerged as a result of the COVID-19 virus.