OSHA’s COVID-19 Vaccination and Testing ETS Revived as Sixth Circuit Dissolves Stay

Seyfarth Synopsis: On December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved its sister Fifth Circuit’s stay of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard in a 2-1 order.  Shortly thereafter, OSHA updated its website indicating it would exercise “enforcement discretion” in extending compliance deadlines and potentially providing enforcement relief for employers who make “good faith” efforts to comply.

We previously published a legal update regarding the U.S. Court of Appeals for the Fifth Circuit’s blistering November 12, 2021 opinion extending its November 6 stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).

Since the entry of that stay, a November 16, 2021 Judicial Panel on Multidistrict Litigation lottery consolidated the various legal challenges to OSHA’s ETS before U.S. Court of Appeals for the Sixth Circuit.  On Wednesday, December 15, an evenly-split Sixth Circuit denied petitions for initial hearing en banc, indicating that a traditional three-judge panel would hear the ETS case.  Chief Judge Jeffrey S. Sutton filed a lengthy dissent to the Court’s en banc denial, focused primarily on the ETS’s legal viability and on why the stay should be maintained.  Speculation suggesting Chief Judge Sutton had read the tea leaves and knew the stay would be lifted seems to have been confirmed by the Friday, December 17, order by the three-judge panel lifting the stay.

Writing for the majority, Judge Jane B. Stranch dissolved the Fifth Circuit’s stay, noting that “[i]n emergency circumstances, OSHA ‘shall’ promulgate an ‘emergency temporary standard’ that takes ‘immediate effect.’”  Echoing arguments from prior opinions upholding vaccine mandates, Judge Stranch suggested that “[t]he ETS does not require anyone to be vaccinated.  Rather, the ETS allows covered employers - employers with 100 or more employees - to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.”  Employers can choose to have workers who are not vaccinated follow other risk mitigation protocols like masking and weekly testing, so it is “[t]he employer - not OSHA - [that] can require that its workers get vaccinated.”

Disagreeing with the Fifth Circuit, the Sixth Circuit affirmed OSHA’s statutory authority to address infectious diseases, including those not specific to the workplace.  Further, the Sixth Circuit found the “major questions doctrine . . . inapplicable . . . because OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority.”  Finding “no threshold issues that OSHA exceeded its authority under the statute,” the Sixth Circuit then evaluated the legal challenges to the ETS, focusing on the statutory requirements for OSHA to issue and ETS, i.e., OSHA must determine that a grave danger exists and that the ETS is necessary to protect workers from that danger.

The Court determined that OSHA’s alleged delay in issuing its ETS “does not undermine the state of emergency that this unprecedented pandemic currently presents.”  Referring to the standard’s lengthy preamble, the Court opined that “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” from COVID-19.  Regarding necessity, Judge Stranch rebuffed some petitioners’ argument that

the word “necessity” mandates that OSHA’s standard may use only the means that are absolutely required to quell the grave danger. Taken seriously, such a cramped reading of the statute would require OSHA to prognosticate an emergency and devise the most narrowly tailored ETS to entirely remove the grave danger from the workplace.  But in virtually every emergency situation that would require an ETS, no precaution proposed by OSHA could ever be 100 percent effective at quelling the emergency.  Courts have acknowledged this practical reality, explaining that ETS standards may necessarily be somewhat general . . . .  It cannot be expected that every procedure or practice will be strictly necessary as to every substance, type of use, or plant operation.  OSHA need only demonstrate that the solution it proposes is necessary to alleviate a grave risk of worker deaths during [the ETS’s] six month term.  (internal citations and quotation marks omitted)

The Court found little likelihood that petitioners would succeed with their constitutional arguments concerning the Commerce Clause and non-delegation doctrine.  Discounting petitioners’ assertions of irreparable harm (in part by circling back to the risk-mitigation options available to employers under the ETS), the Sixth Circuit weighed the irreparable injury factors in favor of the government and the public interest.

In response to the Sixth Circuit’s order, OSHA updated its ETS website:

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.

Key for employers’ compliance efforts is that OSHA has effectively reset the ETS’s compliance deadlines to January 10, 2022 (originally December 6, 2021) for the majority of the ETS’ requirements, and February 9, 2022 (originally January 4, 2022) for employers to begin testing employees that are not fully vaccinated, to account for its stayed period.

One more wrinkle for employers to consider is that immediately following the stay lifting, numerous emergency stay petitions were filed with the U.S. Supreme Court, where Justice Kavanaugh oversees the Sixth Circuit.  Petitioners are requesting that the Court reinstitute a stay while the merits case proceeds.  Justice Kavanaugh will determine how and when that process unfolds.

The Sixth Circuit’s order does not finally resolve the pending legal challenges to the ETS, and the Sixth Circuit will continue to consider the merits of the standard.  But with the ETS back in effect - at least for today - employers should work toward compliance, reasonably and in good faith, targeting the January 10 and February 9 dates to meet the standard’s requirements.  Seyfarth has resources, like our compliance checklist, to assist you as you reinvigorate your ETS-compliant policies. 

Please reach out to your trusted Seyfarth counsel to discuss the ever-changing status of OSHA’s ETS.