Information provided by Brad Young of Harris, Dowell, Fisher and Young, byoung@harrisdowell.com
Although the 5th Circuit Court of Appeals issued a stay of the OSHA order requiring vaccination or testing and masking for employers with more than 100 employees, the 6th Circuit has drawn the short straw and will hear the underlying case.
Of the 16 active justices in the 6th Circuit, 11 were appointed by Republican presidents. Six were appointed by former President Donald Trump, five by former President George W. Bush, three by former President Bill Clinton and two by former President Barak Obama. In addition, there are 14 judges on "senior status" that are not likely to be enlisted for the OSHA vaccination mandate case.
We understand the first decision will be made by a panel of three judges that have been randomly selected, and then an appeal of that decision would be decided by the entire 6th Circuit en banc. However, the 6th Circuit has also been reversed on many occasions by the Court that will ultimately hear the case, the United States Supreme Court.
We are also aware of at least one case in which the 6th Circuit has addressed COVID vaccines. In a case against Western Michigan University, the court refused to stay an order issued by the district court in favor of 16 student athletes each of whom claimed an exemption from the university’s mandatory vaccination requirement based on the First Amendment’s Free Exercise of Religion clause. The court concluded the students had a compelling First Amendment claim. Different facts, issues and parties, but still a fairly conservative decision.
In another case, a 6th Circuit panel upheld the State of Michigan’s requirement that all children in grades K-5 wear a mask while in school. Not a stunning result, but it’s only a state mask requirement and not directly related to a vaccine mandate from the federal government.
We will keep you advised of developments in the federal vaccine mandate.