On Friday evening, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay of OSHA’s COVID-19 Vaccination Emergency Temporary Standard (ETS) requiring COVID-19 vaccination and testing of employees at employers with 100 or more employees. By dissolving the stay, the court allowed the ETS to proceed. OSHA issued the ETS on November 5, 2021, and the following day, the U.S. Court of Appeals for the Fifth Circuit issued a stay, which the Fifth Circuit renewed on November 12. Because multiple petitions challenging the ETS were filed in courts throughout the nation under a procedure for multi-district litigation, challenges were consolidated before the Sixth
Circuit, the federal appeals court in Cincinnati.
The Sixth Circuit’s Decision
Focusing on the havoc that COVID-19 has wreaked across America, a three-judge panel found that the petitioners challenging the ETS failed to satisfy the legal standard for the issuance of a stay. First, the court determined that the ETS did not exceed the scope of OSHA’s statutory authority. Reviewing the history of OSHA’s efforts to protect workers from infectious disease, the court found that OSHA’s responsibility to protect the safety and health of employees "is hardly limited to 'hard hats and safety goggles.'" Indeed, "Given OSHA’s clear and exercised authority to regulate
viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace."
The Sixth Circuit next addressed the petitioners’ challenges to the basis for the ETS articulated by OSHA. The court easily rejected the contention that COVID -19 does not present a true emergency in the workplace: "The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs." Noting the Delta variant and the emerging Omicron variant, the court agreed with OSHA’s conclusion that COVID-19 is an emergency that can be ameliorated by OSHA action.
The court next dismissed the argument that OSHA had not shown the "grave danger" necessary for the issuance of an ETS. Commenting on OSHA’s detailed preamble to the ETS, the court observed, "Based on the wealth of information in the 153-page preamble, it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied." The court then considered whether the ETS is necessary to protect employees from the grave danger posed by COVID-19. Again citing to OSHA’s
preamble to the ETS, the court found that OSHA had more than satisfied its obligation to explain the necessity of the rule.
After brushing aside two constitutional challenges to the ETS, the court found that the petitioners could not establish a likelihood of success on the merits of their challenges, which alone justified the lifting of the stay. The court went on to find that the petitioners also failed to show that enforcing the rule would result in irreparable harm. To the contrary, the court stated:
By contrast, the costs of delaying implementation of the ETS are
comparatively high. Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will "save over 6,500 worker lives and prevent over 250,000 hospitalizations" in just six months. 86 Fed. Reg. 61,402, 61,408. A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy, particularly here where Petitioners have not
shown a likelihood of success on the merits.
Based on all of the foregoing, the court dissolved the stay issued by the Fifth Circuit, meaning that OSHA may proceed with enforcement of the ETS.
New Compliance Deadlines
On Saturday December 18, OSHA issued a news release announcing new compliance dates for the ETS. The agency will not issue citations for noncompliance with ETS requirements before January 10, 2022, and will not issue citations for noncompliance with the
testing requirements until February 9, 2022.
Meaning for Employers
With January 10 looming, employers subject to the ETS should resume the compliance efforts they began in November. That means finalizing and issuing a written policy, determining employee vaccination status and recordkeeping regarding same, providing paid time off for workers to get vaccinated and to recover, and to ensure those who are not vaccinated are wearing face coverings. For employers choosing the mandatory vaccination option under the ETS, February 9 is the date by which employees must be
fully vaccinated; for employers choosing the alternate "vax or test" policy, February 9 is the deadline for employers to have in place the weekly testing and documentation requirement for non-vaccinated employees.
Petitions have already been filed with the Supreme Court seeking to block the ETS. The Supreme Court could issue a decision at any time, with little or no advance notice. Thus, employers should continue to monitor the news for any new developments.
For additional information about federal mandates regarding COVID-19 vaccination of employees, please see our prior First Alerts on these