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OSHA update

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio has been designated to resolve all pending legal challenges to the Biden administration’s emergency rule on workplace COVID-19 vaccination and testing. 

More than 30 petitions seeking judicial review of the rule issued by the Occupational Safety and Health Administration (OSHA) have been filed by state attorneys general, employers, unions and other organizations in all 12 federal appeals courts across the country. The U.S. Judicial Panel on Multidistrict Litigation conducted a lottery to designate a single court to hear all these cases. 

The pending legal challenges include a joint filing by the AFL-CIO and UFCW in the U.S. Court of Appeals in Washington DC, which will seek to have the mandates expanded to cover as many businesses as possible and to ensure that employees do not have to pay for COVID testing and face masks. SEIU Local 32BJ has filed a similar petition with the U.S. Court of Appeals in New York, seeking to broaden the mandate and to require more stringent COVID mitigation measures. 

Most of the petitions have been filed by Republican state attorneys general and employer groups that want to overturn the rule. In one of these cases, the U.S. Court of Appeals for the Fifth Circuit has already issued an order preventing the administration from enforcing the rule. The Sixth Circuit will now have the authority to modify or vacate the Fifth Circuit’s order. In addition, certain employers, possibly including the Postal Service, might request extensions of the deadlines for implementation of the rule.

In a related development, the National Labor Relations Board’s General Counsel’s office has issued a memorandum affirming that unionized employers will be obliged to bargain in good faith with their unions over the workplace effects of the OSHA rule.