Vaccine Mandate Update: White House Halts Enforcement, Ohio Court to Preside Over Litigation

November 19, 2021

The Biden administration announced the suspension of enforcement of its workplace vaccination and testing requirements Thursday for businesses with 100 or more employees. The announcement comes after a Louisiana-based judicial panel in the 5th Circuit temporarily froze implementation of the rule and thereafter affirmed its decision on Nov. 12, 2021 following objections by the U.S. government. The White House had previously instructed businesses to proceed with implementing the requirements.

In a statement, the Occupational Safety and Health Administration (OSHA) said it “has suspended activities related to the implementation and enforcement” of the requirements “pending further developments in the litigation.”

6th Circuit Randomly Tapped to Hear Biden Vaccine Mandate Challenges

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has selected the 6th Circuit Court of Appeals to preside over the litigation surrounding the U.S. Department of Labor’s emergency rule, requiring employers with 100 or more employees to mandate their employees receive the COVID-19 vaccination or undergo weekly testing. The JPML consolidated numerous petitions spanning multiple jurisdictions – including approximately three dozen petitions by Republican-led states (including Ohio), religious organizations, industry groups such as the American Trucking Associations and National Retail Federation, and private businesses – which are largely focused on the government’s authority to hand down such a sweeping emergency rule.

The JPML’s procedures require that the clerk of the judicial panel hold a lottery and choose a court “from a drum” which contains an entry for each circuit where a petition is then pending. The JPML randomly selected the 6th Circuit from the drum on Tuesday.

The 6th Circuit has jurisdiction over federal cases arising out of Ohio, Michigan, Kentucky and Tennessee. It sits in Cincinnati, Ohio and has 16 judges: 11 appointed by Republican presidents and five by Democratic presidents. It has yet to be announced which particular judges will sit on the initial three-judge panel to oversee the proceedings.

While the future of the workplace vaccine mandate remains uncertain, businesses are encouraged to move forward with compliance so as to avoid finding themselves unprepared should the ETS hold up against legal challenges. We are closely monitoring developments and will provide further updates. In the meantime, if you have questions or would like to discuss further, please reach out to Labor & Employment Chair Rob Gilmore at rsg@kjk.com or 216.736.7240, or attorney Kirsten Mooney at kbm@kjk.com or 216.736.7239.