Sixth Circuit Lifts Stay OSHA’s COVID-19 ETS - New Compliance Deadline Is January 10 

The Sixth Circuit Court of Appeals has lifted the stay that halted implementation of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

The Sixth Circuit Court of Appeals has lifted the stay that halted implementation of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Following the court’s decision, OSHA announced new compliance deadlines. According to the agency, OSHA will not issue citations for non-compliance 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.

How Did We Get Here?

As discussed in greater detail in a prior article, on November 4, 2021, the U.S. Department of Labor published an emergency temporary standard implementing the Biden Administration’s mandate that all employers with 100 or more employees require vaccination or, as an alternative, weekly testing. The ETS also requires that these employers provide paid time for employees to get vaccinated and recover from vaccination side effects, and mandates that all unvaccinated workers wear a face mask in the workplace.

The ETS applies to private employers with 100 or more employees firm- or corporate-wide. In states like New Jersey with an OSHA-approved state plan, the ETS also applies to state and local government employers.

In November, the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, temporarily stayed the ETS, and ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.” After similar legal challenges to the OSHA ETS were filed in nearly every U.S. Circuit Court of Appeals, the cases were consolidated and transferred to the Sixth Circuit Court of Appeals, which was selected by the Judicial Panel on Multidistrict Litigation via a lottery.

What Did the Sixth Circuit Say?

On November 23, 2021, OSHA filed a motion asking the Sixth Circuit to lift the stay issued by the Fifth Circuit. By a vote of 2-1, the court lifted the stay, concluding that OSHA was within its authority in issuing the ETS.

In support, the appeals court cited OSHA’s authority to regulate infectious diseases and viruses.  “Longstanding precedent addressing the plain language of the Act, 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,” Judge Jane B. Stranch wrote. The majority also noted that “Congress expressly included funding for OSHA in the American Rescue Plan that is to be used ‘to carry out COVID-19 related worker protection activities.’”

The Sixth Circuit also found that the major questions doctrine, which provides that there must be clear congressional authorization when an agency’s regulatory action brings about an enormous and transformative expansion in the agency’s regulatory authority, was inapplicable because OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority. “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease,” Judge Stranch wrote. “The ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

The Sixth Circuit also refused to question OSHA’s finding that COVID-19 constitutes an “emergency” that poses a “grave danger.”  According to the court:

Based 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. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied. Indeed, OSHA need not demonstrate scientific certainty. As long as it supports its conclusion with “a body of reputable scientific thought,” OSHA may “use conservative assumptions in interpreting the data . . . , risking error on the side of overprotection rather than underprotection.”

Finally, the Sixth Circuit concluded that the health threat to workers outweighed any burden that the vaccination and testing requirements would place on employers, citing the accommodations, variances, or the option to mask-and-test that the ETS offers. “[T]he costs of delaying implementation of the ETS are comparatively high,” Judge Stranch wrote. Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has 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.”

Will There Be Further Legal Challenges?

The short answer is yes. Following the Sixth Circuit’s decision, several plaintiffs filed emergency applications for an immediate stay of the ETS with the U.S. Supreme Court. Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit, must now decide how to handle the applications. His options include staying the ETS pending review of the full Court or referring the applications to the full Court for a decision.

What Should Employers Do to Comply?

Given the short compliance window, we encourage employers to move forward with compliance efforts. These efforts must include assessing each employee’s vaccination status, as well as developing written policies and procedures addressing the requirements with regard to vaccinations and testing.

To ensure you are prepared, we encourage you to contact a member of the Scarinci Hollenbeck Labor & Employment practice group at 201-896-4100.