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Client Alert: Here Today: The OSHA ETS is Revived Following Court of Appeals Ruling

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Following the Sixth Circuit’s ruling on December 17, 2021, dissolving the stay of the OSHA ETS and permitting the temporary rule to go into effect, OSHA has announced that it will delay enforcement of the ETS requirements before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9.

Recap

In November 2021, after OSHA announced its Emergency Temporary Standard (“OSHA ETS”) requiring workplaces with 100 employees to mandate that all covered employees either become fully vaccinated or undergo weekly testing, a spate of litigation initiated by states, labor unions, and private employers broke out across the country challenging OSHA’s authority to implement such a requirement. On November 12, 2021, the Fifth Circuit—the first court of appeals to consider and rule on the enforceability of the OSHA ETS—found that OSHA had exceeded its authority by publishing the ETS. It issued a nationwide stay of implementation of the standard.

The Fifth Circuit’s ruling was not the final word on the matter because cases were also pending in additional federal appeals courts. Activating existing procedures for such circumstances, the Judicial Panel on Multidistrict Litigation convened to consolidate the cases and select one court to hear them all. In a process similar to lottery numbers being chosen from a wheel of numbered balls, on November 16, 2021, the Sixth Circuit was selected to hear the consolidated cases. While the Sixth Circuit considered the cases, the Fifth Circuit’s earlier stay remained in effect.

The Sixth Circuit’s Decision

On December 17, 2021, the Sixth Circuit issued its ruling dissolving the stay issued by the Fifth Circuit.1 The panel of Sixth Circuit judges ruled 2-1 to lift the stay, and in so doing, found that OSHA had “likely” acted within its authority in issuing the ETS. The majority opinion emphasized that the ETS does not require anyone to be vaccinated; rather, it allows covered employers to determine for themselves whether to allow unvaccinated workers to mask and test for COVID-19, to allow work from home, or to require vaccination.

The Court found that the COVID-19 virus falls within the definition of a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” as required under the OSHA statute to issue an ETS. Once the Court concluded that OSHA did not exceed its authority in issuing the ETS, the Court also reviewed whether the terms ETS itself were supported by substantial evidence. The Court found that OSHA had demonstrated that COVID-19 posed a grave danger to workers, and unvaccinated workers in particular, in the workplace. The Court reviewed OSHA’s evidence regarding the transmissibility of COVID-19, the severity of harm from COVID-19, and projections about how the ETS would save lives and hospitalizations. The Court was not persuaded by the Fifth Circuit’s concern that the ETS was both overinclusive and underinclusive, because it would not be possible for OSHA to target rules that would perfectly fit every workplace.

Looking Ahead

On December 18, 2021, OSHA issued a statement expressing gratification for dissolution of the stay of the ETS.2 Given the delay and uncertainty caused by the stay, OSHA announced adjustments to its enforcement timeline, stating:

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[, 2022] and will not issue citations for noncompliance with the standard’s testing requirements before February 9[, 2022], as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Since the Sixth Circuit had already declined to hear the challenge before the full panel of all appeals judges in the circuit and instead left the case to the three-judge panel that ruled on December 17,3 it will not be re-considered at the appellate level. Multiple groups challenging the ETS have already filed requests with the Supreme Court asking it to reinstate the stay. Justice Kavanaugh, who is in charge of such requests, has requested a response to the applications for stay from OSHA by December 30, 2021.

Until there is a decision from the Supreme Court, employers are expected to comply with the OSHA ETS before the revised enforcement dates. Please consult our November 9, 2021 Client Alert for details regarding the ETS requirements.

We Can Help You

Throughout the pandemic, BFKN has been at the forefront of advising and counseling clients through workplace issues related to COVID-19. Please get in touch to discuss your specific employment questions related to COVID-19 vaccination, such as those involving whether your organization is covered under the OSHA ETS or other mandates, the mechanics of administering a mandatory vaccination program, and how to analyze exemption requests under the evolving administrative guidance. We are also available to discuss your other business needs.


1 See In re MCP No. 165, Occupational Safety and Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-70000, et al. (6th Cir. Dec. 17, 2021), available online at https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf 

2 U.S. Department of Labor, Statement from the US Department of Labor on the 6th Circuit Court of Appeals Dissolving the Stay of OSHA Emergency Temporary Standard on Vaccination and Testing (Dec. 17, 2021), available online at https://www.dol.gov/newsroom/releases/osha/osha20211218 

3 See In re MCP No. 165, Occupational Safety and Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-70000, et al. (6th Cir. Dec. 15, 2021), available online at https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0283p-06.pdf 

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