Latest update in series:
What’s Next for Employers After the Supreme Court’s Vaccine Rulings? (January 14, 2022)
Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements, Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large Employers, Federal Contractors and Healthcare Organizations (September 16, 2021)
On late Friday Dec. 17, 2021 a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit reinstated the Biden administration’s vaccine-or-test mandate for large employers, lifting the Fifth Circuit’s earlier stay of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS). OSHA, in turn, issued a “litigation update” regarding related deadlines. The effect of the Sixth Circuit’s order and OSHA’s “litigation update” is that, pending judicial review by the U.S. Supreme Court, the ETS requirements are legally resurrected – with compliance deadlines that have now been moved to January and February 2022.
As McGuireWoods noted in a Nov. 4, 2021 alert and Nov. 11, 2021 FAQs, OSHA issued an ETS requiring large employers to implement COVID-19 vaccination, testing, face covering and other protocols. The ETS required all covered employees to be fully vaccinated or to begin weekly testing no later than Jan. 4, 2022. Further, the ETS required employers to collect vaccination status information, provide paid time off for vaccination and implement written policies by Dec. 5, 2021.
In response, every U.S. Court of Appeals received lawsuits challenging the ETS. The Fifth Circuit issued a temporary stay in one of the cases on Nov. 5, 2021 and reaffirmed its ruling on Nov. 12, 2021, pausing implementation of the ETS across the nation.
On Nov. 16, 2021, the Judicial Panel on Multidistrict Litigation consolidated the circuit court cases challenging the ETS. Following a random lottery involving every U.S. Court of Appeals, the panel assigned and transferred the newly consolidated case to the Sixth Circuit for further action. The same day, OSHA announced it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Sixth Circuit Panel Ruling
Writing for the Sixth Circuit panel majority in its Dec. 17, 2021 opinion, Judge Jane B. Stranch concluded that:
Longstanding precedent addressing the plain language of the [Occupational Safety and Health Act of 1970], OSHA’s interpretations 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 responsibility the Act imposes on OSHA to protect the safety and health of employees, moreover, is hardly limited to “hard hats and safety goggles.” OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion…. Having been charged by the Act with creating such health-based standards, it makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal.
The panel majority further found that “[b]ased 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.”
Thus, after working through further findings regarding the “major question doctrine,” factual ETS support, necessity, and constitutional Commerce Clause and “non-delegation doctrine” challenges, the Court concluded that “[i]n light of the foregoing, we find that the factors regarding irreparable injury weigh in favor of the Government and the public interest. For the foregoing reasons, we GRANT the Government’s motion and DISSOLVE the stay issued by the Fifth Circuit.”
A full copy of the Order can be found here.
OSHA Litigation Update
In response to the Sixth Circuit’s order, OSHA updated its ETS website with the following “Litigation Update”:
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.
The combined effect of the Sixth Circuit decision and the OSHA litigation update means that for now, pending U.S. Supreme Court review, the ETS is back in effect, with revised deadlines (assuming sufficient evidence regarding employer “good faith efforts” as noted above) of:
- Feb. 9, 2022 for covered employees to be fully vaccinated (or to test weekly); and
- Jan. 10, 2022 for all other ETS compliance mandates (e.g., development of a written policy, distribution of employee notices, survey data compilation, implementation of paid time off for vaccination and recovery, etc.).
This, of course, is only true for the 22 states that are under federal OSHA jurisdiction. For the 28 OSHA “state plan” states, such states originally had 30 days from issuance of the ETS to adopt the ETS or “at least as effective” measures. Thus, although OSHA is silent on this issue so far, that state plan deadline may later move back as well.
Takeaways for Employers
Immediately after the Sixth Circuit decision, an emergency stay request was filed with the U.S. Supreme Court, and the Court will likely announce an expedited briefing schedule later this week. Until a Supreme Court decision on the requested stay (and the ultimate merits of the case):
- The ETS is effectively reinstated, with revised compliance deadlines. Thus, employers who took a “pencils down” approach to policy drafting in light of the earlier Fifth Circuit stay may need to reconsider their corporate posture.
- Employers are wise to continue to prepare for the ETS mandate in case another stay is not issued, the ETS is upheld, and/or the deadlines are not further extended by OSHA or otherwise.
- No legal stay has been issued to date for Executive Order 13991 (the federal vaccine mandate impacting federal employees and on-site contractors).
- However, a nationwide legal stay remains in place for the federal vaccine mandates under Executive Order 14042 (impacting certain federal contractors and subcontractors).
- Further, a partial 24-state legal stay remains in place for the federal vaccine mandates under the Centers for Medicare & Medicaid Services interim rule (impacting certain healthcare organizations).
For questions about the status of the OSHA ETS or its mandate requirements, or for assistance preparing related policies and materials, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s labor and employment, affirmative action, federal contracting or COVID-19 response teams.