On the evening of December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), which imposes “vaccinate or test” requirements for private employers.  Within two hours, a broad coalition of 26 trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay pending Supreme Court review.  OSHA then granted employers a limited grace period to comply with the ETS’ requirements. In contrast, the same day, the Eleventh Circuit upheld the nationwide injunction against the vaccinate mandate applicable to federal contractors, pending further review. Although this situation remains fluid, employers subject to the OSHA ETS should consider preparing for compliance on the revised timetable, as should federal contractors with 100 or more employees.

OSHA Vaccine-or-Test Mandate

Shortly after the first petition to the Supreme Court was filed, OSHA announced that it will extend employers’ timeline to comply with the ETS.  Per OSHA, employers will now have until January 10 to develop compliant policies and until February 9 to begin testing programs:

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.

Background

The ETS was released for public review on November 4, 2021 (and formally became effective upon its publication in the Federal Register the next day).  Several states, private employers, labor unions, and other individual citizens immediately filed suit, challenging OSHA’s authority to issue the ETS as well as the basis for the ETS.  On November 6, 2021, the Fifth Circuit stayed the ETS pending briefing, and on November 12, 2021, the Fifth Circuit further stayed enforcement and implementation of the ETS pending judicial review.  In that decision, the Fifth Circuit stated that the ETS faced fatal statutory and constitutional issues and that the pandemic does not meet the emergency standard of having “substances or agents” that are “toxic or physically harmful” and does not pose a “grave danger.”

The Sixth Circuit’s Decision

In its 2-1 decision issued on December 17, a three-judge panel of the Sixth Circuit opined that OSHA has clear authority to regulate viruses and infectious diseases, as it has done, for example, in implementing the bloodborne pathogen regulation, enforcing the Needlestick Safety and Prevention Act, and establishing protections from harmful dust and fog.  The court indicated that OSHA’s purview is hardly limited to “hard hats and safety goggles.”

The Sixth Circuit further disagreed with the Fifth Circuit’s analysis and stated that the OSH Act confers authority on OSHA to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses in the workplace.

To determine whether a stay pending judicial review is warranted, a court must review four factors:

1. Whether the stay applicant is likely to succeed on the merits;
2. Whether the applicant will be irreparably injured absent a stay;
3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
4. Where the public interest lies.

The Sixth Circuit panel did not address all of these factors, but principally found that because those challenging the ETS cannot establish a likelihood of success on the merits, the stay should be lifted. 

The Sixth Circuit panel relied heavily on the 153-page preamble to the ETS and concluded that COVID-19 still poses an emergency, given a recent rapid increase in COVID-19 infections that can cause severe health effects.  The panel noted that COVID-19 has evolved into strains like the Delta and Omicron variants, and “has continued to spread, mutate, kill and block the safe return of American workers to their jobs.”  The panel further stated that COVID-19 poses a particular and pervasive danger for unvaccinated workers in the workplace, and that there is a heightened risk of exposure when people are at work.  The Sixth Circuit panel stated that based upon the “wealth of information in the 153-page preamble” it is “difficult to imagine more OSHA could do to justify its findings that workers face a grave danger in the workplace” and that it was not “appropriate to second guess that agency determination considering the substantial evidence.” 

In analyzing whether the ETS is “necessary to protect employees from the identified danger, the court found that “the emergence of the Delta variant . . . significantly changed public health policy and underscored a need for issuing an ETS – not only to control the variant itself, but to control the spread of the disease to slow further mutations.”  In this regard, the court noted that the ETS contains “options for employers” to pursue a multi-faceted strategy, including vaccination, face covering and testing.  Regular testing is essential to identify COVID-19 infections, which are often attributable to asymptomatic or pre-symptomatic transmission, and vaccinated employees are less likely than unvaccinated employees to bring transmissible viruses into the workplace. 

The Sixth Circuit panel further addressed OSHA’s decision to apply the ETS to employers with 100 or more employees.  The court accepted OSHA’s reasoning that the ETS is economically feasible for such employers based on OSHA’s economic analysis showing little to no harm to businesses because the benefits will outweigh the costs.  The court also noted that, under the ETS, a business can raise affirmative defenses like infeasibility or impossibility to any citations issued by OSHA and/or petition for variances if it has alternative, equally protective means of addressing the danger posed by COVID-19.

Finally, the Sixth Circuit panel reviewed and rejected arguments regarding the constitutional challenges to the ETS including the Commerce Clause and the Non-Delegation Doctrine.  The court stated that the ETS regulates employers, that Congress addressed regulating employers when it passed the OSH Act, and that Congress intended the OSH Act to preempt state and local standards that conflict with an OSH Standard. 

The court concluded by stating that the claimed injuries to Petitioners are speculative and thus Petitioners cannot prove irreparable harm so as to warrant a stay. 

Emergency Petition for Review and Stay

Within an hour of the Sixth Circuit’s Order, a group of 26 trade groups (the “Applicants”) filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review, directed to Supreme Court Justice Brett Kavanaugh, who oversees the Sixth Circuit.  The Application requests an immediate stay of the effective date of the OSHA ETS, or in the alternative that the application be treated as both a motion to stay and a petition for writ of certiorari to the Supreme Court.  Applicants also asked to stay the ETS pending resolution of the Supreme Court’s review and to set the case for expedited review.  

The Application reviews the four factors required for a stay, asserting that: OSHA has exceeded its authority and has only narrow emergency power; the ETS will inflict irreparable harm against most private employers that collectively employ millions of Americans; and costs incurred by these employers with respect to testing, even though not mandated under the ETS, are being imposed by federal law.  The Applicants allege that costs incurred by employers for testing “millions of employees who refuse to be vaccinated” and passing those costs to consumers will compound already fragile supply chains and labor markets at the peak holiday season.  The Applicants further assert that requiring either vaccines or COVID-19 testing will cause large numbers of unvaccinated employees to quit their jobs or be separated for non-compliance, leaving employers to close their doors or reduce hours and ultimately reduce services to consumers. The Applicants also make a variety of constitutional arguments.   

Federal Contractor Mandate

Meanwhile, another important decision on vaccination mandates was issued on Friday night, this time by the Eleventh Circuit. That court denied the administration’s request to dissolve a nationwide preliminary injunction issued by a federal district judge in Georgia on December 7 against the so-called Federal Contractor Vaccination Mandate. The Eleventh Circuit found that the administration had failed to demonstrate irreparable harm to the federal government necessary to lift the injunction. That case is by no means over—the Eleventh Circuit set an expedited schedule for briefing on the merits of the appeal extending into late January.  It is unclear at this time whether the administration will file an emergency petition for rehearing before the entire circuit court, or file an emergency appeal to the Supreme Court (which would be heard in the first instance by Justice Clarence Thomas), or leave the injunction in place until the full merits are heard in January.

So Now What?

As we publish, we cannot predict whether the Supreme Court will agree to take up the first Application addressing the OSHA vaccine mandate described above or others that followed, or grant a stay pending review of the Application.  There are various reasons the Supreme Court may consider taking up the matter:

• To resolve the conflict between the Fifth and Sixth Circuit decisions;
• To assess whether OSHA's contention that use of its emergency authority is "necessary" to address a worldwide pandemic is contrary to recent Supreme Court precedent (Alabama Assoc. of Realtors) holding that a "necessary" requirement cannot permit a "breathtaking amount of authority"; and
• To address a matter of great public significance.  As the Application notes, "[t]he impact of the OSHA ETS cannot be overstated" because of the direct and indirect effects that it will have on “almost everyone in one way or another” and the alleged “profoundly harmful economic consequences” of implementation.

In any event, while the federal contractor mandate remains stayed, the ETS is not stayed at this time, although OSHA has offered a brief holiday extension of the applicable timelines.  Employers may continue to develop COVID-19 programs to comply with the “vax or test” mandate, including collecting employees’ vaccination status, drafting an ETS policy, putting together a testing protocol, and training employees on relevant processes and policies, with the revised January 10 and February 9 deadlines in view.