A case challenging the Occupational Safety and Health Administration’s vaccine mandates will not be heard immediately by the full U.S. Court of Appeals for the 6th Circuit and Gov. Ron DeSantis is warning that will result in a potential “hiccup.”
Specifically, DeSantis fears the uncertainty of a three-judge panel, set to hear the case ahead of a potential full court review.
“People should just be prepared. It is on the three-judge panel. You could potentially see a hiccup before we ultimately get what I think will be a favorable decision,” DeSantis said in Ocala Friday at an event highlighting COVID-19 treatment.
The Governor does not think the court will ultimately rule in OSHA’s favor, but does worry a three-judge panel, “which may not be representative of the full court,” could temporarily reinstate the mandate, which is stayed for the time being.
“I was surprised at that. You could end up with what I consider an adverse ruling on the panel,” DeSantis warned. “And then it maybe goes to the full court, and then the rule is ruled to be unconstitutional. But I’m confident of the ultimate result. How you get there is a little bit of a curveball.”
“Who knows, they could lift the stay on this. I hope not,” DeSantis added. “I’m not predicting that. But I think it’s something that didn’t need to necessarily go there.”
DeSantis offered similar warnings at another news conference Thursday, saying he was a “little bit surprised” and “disappointed” to see the court’s 8-8 vote to refer the case to a three-judge panel, even though that’s its custom.
With the composition of that three-judge panel in doubt, DeSantis warned Thursday the stay on the OSHA vaccine mandate could be lifted, at least for a time.
“But you know, there’s a lot that could potentially be riding on this, and if they were to reverse the stay or reverse the injunction, boy,” the Governor said in Yulee.
The rule would affect major companies in the new year, compelling companies with at least 100 employees to require full vaccination or weekly testing for those deemed not fully vaccinated.
Keith Wilkes, a labor and employment partner/shareholder at the national law firm Hall Estill, has been fielding calls from employers about the announcement.
“The Sixth Circuit Opinion sets-up a showdown at the U.S. Supreme Court, and definitely moves the odds in favor of the OSHA ETS prevailing at the end of the day,” Wilkes said.
Florida banned employer vaccine mandates, but much of the country has not.