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Federal 'Vaccinate or Test' Mandate Stayed Pending Legal Challenge

November 10, 2021

By: Rachel D. Gebaide, Morey Raiskin & Abood Shebib

As anticipated, the U.S. Department of Labor’s Occupational Safety and Health Administration’s  (OSHA) “vaccinate” or “test and mask” rule for large private employers, issued as an emergency temporary standard (ETS), came under immediate challenge across the country after it was officially published in the Federal Register last Friday, November 5, 2021. The ETS generally requires private employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing along with continuous masking for their employees (a summary of the ETS’s primary requirements is available from the Lowndes Labor & Employment Law team).

The State of Florida, along with Alabama, Georgia, and several private parties, are challenging the ETS and petitioned the Eleventh Circuit Court of Appeals to review the ETS, arguing it exceeded OSHA’s statutory authority and conflicted with the First Amendment of the U.S. Constitution and with the Religious Freedom Restoration Act. The State of Florida and the other petitioners have also filed an emergency motion asking the Eleventh Circuit to stay the ETS pending the outcome of the court’s review.

The petitioners argue that the ETS “is neither a workplace standard nor is it a response to an emergency” but is, instead, “a backdoor attempt to dictate the personal health decisions of millions of ordinary Americans, many of whom have deeply personal reasons to decline to be vaccinated.” The Eleventh Circuit has set a Friday, November 12, 2021, deadline for OSHA’s response in opposition to the motion for stay.

In addition, two petitions challenging the ETS were filed in the Eleventh Circuit by private parties, including construction industry trade associations.

Concurrently, the State of Texas, along with Louisiana, Mississippi, South Carolina, Utah, and several private parties filed several petitions in the Fifth Circuit Court of Appeals seeking review of the ETS. Some of the private parties also filed a motion for emergency stay of the ETS and asked for expedited review. The Fifth Circuit responded by issuing a temporary stay of the ETS, blocking its enforcement unless and until the stay is lifted by the court.

The Fifth Circuit noted the petitions led it to believe the ETS presented “grave statutory and constitutional issues” and stayed the ETS (which the court styled a “mandate”) pending further action by the court. OSHA was given until Monday, November 8, 2021, to respond to the private petitioners’ motion, and the court gave the petitioners until Tuesday, November 9, 2021, to reply.

OSHA filed its response and argued no stay was needed because the testing requirement would not take effect until January 2022, and because the Judicial Panel on Multidistrict Litigation had yet to consolidate the numerous challenges to the ETS in one circuit court of appeals pursuant to federal law.[1] Whether the Fifth Circuit will take any further action before all the various petitions across circuits are consolidated remains to be seen.

The ETS is also under challenge in the Eighth Circuit Court of Appeals (with a November 5, 2021, petition filed by eleven states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming—along with four private petitioners), the Sixth Circuit Court of Appeals (courtesy of a petition and motion to stay filed by seven states—Kansas, Kentucky, Idaho, Ohio, Oklahoma, Tennessee, and West Virginia), the Seventh Circuit Court of Appeals (by the State of Indiana), and the D.C. Circuit Court of Appeals (by the Republican National Committee).

For now, and to avoid the potential for a shortened planning window, employers should consider preparing as if the ETS will go into effect. This is especially so since the first deadline for compliance is December 5, 2021, and the “vaccinate or test” requirement takes effect January 4, 2022. Given the issues involved, it seems likely this matter eventually will be litigated before the U.S. Supreme Court.

Lowndes will keep you updated as to legal developments and remains available to help impacted employers prepare for compliance.


[1] Under 28 U.S.C. §2112(a), because the ETS has come under legal challenge in at least two circuit courts, with the ETS challenged in the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuit Courts of Appeal, the judicial panel on multidistrict litigation must randomly designate one of those circuit courts of appeal and consolidate all the petitions for review in that randomly selected circuit court.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Abood

Abood Shebib is an attorney in the firm’s Labor and Employment Group. He primarily focuses his practice on representing employers in complex employment litigation matters, including matters involving the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act of 1964; the Fair Credit Reporting Act (FCRA); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); and the Family Medical Leave Act (FMLA). He works with a wide range of clients, from individuals and small businesses to Fortune 100 companies.

Abood has extensive experience handling all aspects of the employment litigation process in both state and federal court. In addition to preparing dispositive motions, including motions for summary judgment and motions to dismiss, taking and defending depositions, and arguing motions in court, he regularly conducts investigations and responds to charges of discrimination before the Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Abood counsels clients on litigation avoidance strategies, as well as assisting with settlements and releases and the termination and discipline of employees.

With a background in commercial litigation, Abood also has experience advising clients on matters involving business litigation, trademark litigation and contract disputes in federal and state court.

Abood earned his undergraduate degree in Biology from the University of Arkansas and his law degree cum laude from the University of Florida Levin College of Law. While in law school, he served as a judicial intern to Magistrate Judge Monte C. Richardson of the U.S. District Court for the Middle District of Florida, Jacksonville Division and as a certified legal intern in the Office of the Public Defender for the Eighth Judicial Circuit. He was also an intern in the Office of the Vice President and General Counsel for the University of Florida. Shortly after graduating from law school, Abood interned with Judge James S. Moody in the U.S. District Court for the Middle District of Florida, Tampa Division. 

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