On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements and February 9, 2022 for testing requirements. As explained below, however, the “vaccinate or test” ETS is still subject to further challenge. Several petitions to stay the ETS have been filed with the U.S. Supreme Court.
How did we get here?
In early November, OSHA issued an ETS generally requiring that all private employers with 100 or more U.S. employees adopt either: (i) a mandatory vaccination policy; or (ii) a policy that permits employees to choose between becoming fully-vaccinated and submitting to weekly COVID-19 testing. The initial compliance deadline for the ETS as-drafted was December 6, 2021, with employers then having until January 4, 2022 to ensure that employees who were not fully vaccinated were tested for COVID-19 at least weekly. Prior posts concerning the ETS can be found here, here, and here.
Legal challenges to the ETS immediately ensued and, on November 12, the Fifth Circuit Court of Appeals issued a stay of the ETS pending judicial review. Shortly thereafter, on November 16, all of the many legal cases challenging the ETS were consolidated into one litigation to be heard by the Sixth Circuit Court of Appeals, chosen via lottery.
One week later, OSHA asked the Sixth Circuit to dissolve the Fifth Circuit’s stay. The agency simultaneously issued a statement on its website noting that, “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
On December 17, 2021 (just two days after denying requests for initial hearing en banc), the Sixth Circuit dissolved the stay placed on the ETS, which opened the door for OSHA to renew its plans to enforce the ETS in the coming year.
Why did the Sixth Circuit dissolve the stay?
A panel of three female justices decided the issue. Judge Stranch, an Obama appointee, authored the majority opinion; Judge Gibbons, a Bush appointee, authored the concurring opinion; and Judge Larsen, a Trump appointee, dissented from her two colleagues.
In the majority opinion, the Sixth Circuit found that OSHA did not exceed its authority to issue the ETS. More particularly, the Court concluded that “[l]ong standing precedent addressing the plain language of the Act, OSHA’s interpretation of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”
The Sixth Circuit also found that the ETS’s challengers would ultimately have little likelihood of success demonstrating that the rule was unlawful. To that end, the Court observed that OSHA has the authority to pass an ETS if it can establish that workers are exposed to a “grave danger” and that the ETS is necessary. In finding that OSHA met these two elements, the Sixth Circuit relied heavily on OSHA’s extensive ETS preamble citing to public health data and scientific evidence. The appeals court likewise rejected claims that COVID-19 is no longer a “grave danger” in light of the rise of new and more transmissible variants and the resulting increases in COVID-19 cases. Additionally, the Sixth Circuit found that the constitutional challenges to the ETS had little possibility of success.
Finally, the Sixth Circuit concluded that the challengers to the ETS had not shown that a sufficiently irreparable injury would result from lifting the stay, as compared to the injuries the government and public interest would incur if the stay remained in place. The Sixth Circuit reasoned that the injuries the petitioners asserted are entirely speculative, whereas the costs of delaying implementation of the ETS are comparatively high. The Sixth Circuit noted that to the extent a business with over 100 employees impacted at this stage of the ETS faces true impossibility of implementation, it can assert that as an affirmative defense in response to a citation. The Sixth Circuit also noted that employers have the option to seek a variance to the ETS or to comply by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries. On the other hand, a stay, the Court observed, would hinder the ETS’s ability to save worker lives and reduce the number of hospitalizations.
What does this mean for employers?
Following the Sixth Circuit’s decision to reinstate the ETS, OSHA promptly updated its website – which, as noted above, previously stated that the agency had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation” – with the following message:
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
Accordingly, covered employers will have until January 10, 2022 to comply with all non-testing requirements of the ETS and until February 9, 2022 to comply with testing requirements. Employers will therefore need to spend time over the holidays ensuring they have a written policy in place, obtain employee vaccination statuses, and all other non-testing requirements by January 10. Then beginning February 9, employers will need to start testing employees who are unvaccinated.
No matter what route employers adopt with respect to the ETS, the next stop for this litigation is almost assuredly the U.S. Supreme Court. Indeed, three petitioners have already filed emergency motions for stay before the Supreme Court.
Note that this post is current as of December 18, 2021. The case is moving quickly, so please stay tuned for further updates. We will continue monitor developments concerning the above matters over the coming days and weeks. If you have questions regarding the OSHA ETS, the related litigation, or implementing the requirements of the OSHA ETS in the workplace, please do not hesitate to contact any member of the Reed Smith Labor and Employment team.