All 34 lawsuits—including AGC’s, supported by the Construction Advocacy Fund—challenging OSHA’s Emergency Temporary Standard (ETS) on COVID-19 are now consolidated in the U.S. Court of Appeals for the Sixth Circuit.
The federal government has filed a motion in that court to dissolve the current stay of any enforcement of that standard, including its vaccination/testing mandate, and on December 10, the parties will complete their briefing of that motion. Since November 6, that stay has precluded OSHA from implementing or enforcing the ETS, including requirements that OSHA had scheduled to take effect on December 6. AGC of America expects the court to grant or deny the government’s motion within a matter of days. While significant, the court’s decision will not end the litigation. Its decision on the stay will not be a final decision on the merits of the ETS. That will come later.
The Sixth Circuit is considered one of the more conservative courts. Republicans nominated 11 of its members and Democrats nominated only 5. If the Sixth Circuit nevertheless dissolves the stay, OSHA will have the authority to immediately begin implementing and enforcing the ETS. At that point, one or more of the petitioners is, however, likely to go to the Supreme Court, seeking an emergency order to reinstate the stay.