And They’re Back: Sixth Circuit Lifts Stay on OSHA’s ETS Regarding Mandatory Vaccination or Testing

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay of the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) which had previously been halted by the Fifth Circuit Court of Appeals. A stay of this decision was immediately appealed to the U.S. Supreme Court. OSHA has issued a statement stating it plans to enforce the standards as early as January 10, 2022. 

Overview of OSHA’s ETS

As provided in our initial alert, on November 4, 2021, OSHA issued its ETS requiring employers with 100 or more employees to mandate vaccinations or weekly testing and masking for their unvaccinated employees. The ETS also requires employers to document employee vaccination status and offer paid time off for employees to receive the required doses and recover from any side effects following vaccination. The ETS applied to all employers regulated by the Occupational Safety and Health Act with 100 or more employees, subject to exemptions for employees who work at home or alone, with no coworkers or customers present, or workers who work exclusively outdoors. Illinois public employers were potentially subject to the ETS because Illinois is a state plan jurisdiction that has chosen to extend federal OSHA standards to state and local government workers. Initially, Illinois OSHA stated its intent to “develop guidance” for non-federal public employees, but on November 17, stated it would no longer adopt standards pending the federal stay of the ETS.

Sixth Circuit Lifts Stay on OSHA’s ETS

Within days of OSHA’s issuance of the ETS, suits were filed in virtually every federal circuit court, seeking a stay of the ETS. On November 5, 2021, the Fifth Circuit stayed the ETS, finding that OSHA had exceeded its statutory authority and also violated the Constitution. In response to the Fifth Circuit’s stay, on November 16, OSHA announced that it was suspending all implementation and enforcement of efforts related to the ETS.   

The Sixth Circuit was selected by lottery to hear all the challenges on a consolidated basis. On December 17, 2021, the Sixth Circuit issued a decision lifting the stay on OSHA’s ETS. The following highlights the court’s decision:

• Standard for Stay: The court first noted the heavy burden required to stay an administrative action. To determine whether a stay is merited, the court must consider (1) whether the stay applicant has made a strong showing that he 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.
• OSHA did not exceed its Authority: Relying on other sections of the OSH Act and other OSHA regulations which expressly discuss diseases (e.g., bloodborne pathogens), the Court concluded OSHA has the authority to implement an ETS to curb the spread of COVID-19. Further, the Court rejected the argument the ETS was a “novel expansion” of OSHA’s authority. Vaccination and medical examinations are tools OSHA has utilized in the past. The Court concluded, “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.”
• Emergency: Challengers argued the fact that OSHA did not issue the ETS at the onset of the pandemic undermined the existence of an emergency needing emergency intervention by OSHA. However, the court concluded that whether OSHA should have issued the ETS earlier did not undermine the fact that COVID-19 “continues to spread, mutate, kill and block the safe return of American workers to their jobs.”
• Grave Danger: In finding the existence of grave danger, the court extended deference to OSHA’s 153-page ETS preamble that overwhelmingly established grave danger, including the evidence of the serious illness, long-lasting effects, and deaths that have resulted from the virus, which has been proven to easily spread in traditional workplaces.
• Necessity: The court found that the ETS was necessary to alleviate the grave risks associated with transmission of COVID-19 in the workplace. The court deferred to OSHA’s decision to focus on larger employers that have the administrative and managerial capacity to implement the ETS and are more likely to have larger facilities potentially more exposed to larger outbreaks.
• Economic Costs: The court noted OSHA was only required to demonstrate the ETS was economically feasible” meaning it does not “threaten massive dislocation to, or imperil the existence of, the industry.” OSHA demonstrated compliance was economically feasible. The court noted that an employer can raise an infeasibility defense that costs were too high at the time of citation by OSHA.
• Constitutional challenges: The court rejected arguments that the ETS violated the Constitution’s Commerce Clause and the Non-Delegation Doctrine. In rejecting the Commerce Clause argument, the court noted that OSHA has long regulated employers consistent with the Commerce Clause, and COVID-19’s effects on commerce is well-documented. In rejecting the Non-Delegation Doctrine argument, the court noted the ETS was not an improper delegation of legislative power to an administrative agency because the OSH Act expressly provided OSHA authority to issue the ETS.
• Irreparable Harm: The court found the petitioners’ arguments of irreparable harm were speculative and failed to consider the accommodations, variances and masks and test options available to employers. Conversely, the court found that delays in implementing the ETS to curb the spread of a virus that has killed over 800,000 people in the U.S. outweighs the harm alleged by the petitioners.  

The petitioners have already filed an emergency petition for review and stay to the U.S. Supreme Court. We are continually monitoring this as it further develops.

What should we do now?

The flurry of litigation regarding the ETS have left employers unsure on how to best proceed. OSHA provided some guidance following the Fifth Circuit’s lifting of the stay but many questions remain. OSHA issued the following statement:  

“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.” 

At this time, employers should consider continuing of the drafting of their vaccination/testing policies, recordkeeping measures and training requirements under the ETS. We hope that OSHA provides further guidance and clarification on what exactly is required by January 10, but for now, employers should work to be in compliance with the ETS by that time. For those employees who are fully vaccinated on or before January 10, an employer will be in compliance with the vaccination aspect of the standard; for those employees who are not, employers will need to make a decision whether to allow weekly testing or whether to exclude those employees from the workplace. We will continue to monitor OSHA’s communications as well as the litigation related to the ETS.

As for the impact on Illinois public sector employers, we anticipate that Illinois OSHA will move forward to issue guidance, but as of this writing, the Illinois Department of Labor’s website has not been updated.