On December 17, the Sixth Circuit issued an opinion lifting the nationwide stay of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing. As previously reported here, the ETS requires employers with 100 or more employees to either require that workers receive the COVID-19 vaccine or submit to regular COVID-19 testing and wear a face covering.
OSHA is now free to enforce the ETS, but has stated it will delay any enforcement action until January 10 for all requirements except testing, and February 9 for testing requirements. OSHA’s website states:
“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 opinion, authored by Judge Jane Stranch, an Obama appointee, and joined by Judge Julia Gibbons, a George W. Bush appointee, found that the ETS is within the bounds of OSHA’s statutory authority. Under the Occupational Safety and Health Act, OSHA can issue emergency standards if necessary to protect workers from a “grave danger.” The Court found that “[g]iven 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… [i]ndeed, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers.”
In response to the Fifth Circuit’s argument that the ETS must fail because OSHA did not implement the standard at the beginning of the pandemic, the Sixth Circuit found that OSHA properly explained its reasoning for its delay. Specifically, the Court held that “OSHA addressed COVID-19 in progressive steps tailored to the stage of the pandemic, including consideration of the growing and changing virus, the nature of the industries and workplaces involved, and the availability of effective tools to address the virus.” Given the rise of the Delta variant, the ineffectiveness of voluntary guidance, and the FDA approval of certain vaccines, the Court found that OSHA offered an adequate explanation as to the timing of its decision.
The Sixth Circuit further found that OSHA demonstrated that COVID-19 poses a “grave danger” to workers. OSHA provided evidence that “working age Americans (18-64 years old) now have a 1 in 14 chance of hospitalization when infected with COVID-19.” The Court further stated that “[t]he Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is ‘required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces’ is simply wrong…. On this point, OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”
Additionally, the Sixth Circuit found that OSHA satisfied its burden of showing that the ETS is essential to reducing the grave danger. The Court stated that “[e]xtensive evidence cited by OSHA shows that vaccination ‘reduce[s] the presence and severity of COVID-19 cases in the workplace,’ and effectively ‘ensur[es]’ that workers are protected from being infected and infecting others.”
Finally, the Sixth Circuit found that the Petitioners failed to demonstrate an irreparable harm if the ETS goes into effect. In fact, the Court stated that the costs of delaying the standard are high. The Court found that “the ETS is an important step in curtailing the transmission of a deadly virus that 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” and that OSHA estimates “the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.”
An appeal to the U.S. Supreme Court has already been filed, but the ETS will remain in effect unless the U.S. Supreme Court issues a stay. Another significant byproduct of the stay being lifted is that the OSHA ETS, by its terms, preempts conflicting state or local laws. For employers struggling with putting a vaccine mandate in place in those states, like Texas, which have restricted such employer mandates by legislation or executive order, the OSHA ETS paves the way to take the position that such restrictions no longer apply.