Sixth Circuit Revives OSHA Vaccine/Testing Emergency Temporary Standard

On December 17, 2021, the US Court of Appeals for the Sixth Circuit issued an Opinion lifting the stay of OSHA’s emergency temporary standard (ETS) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccine or weekly testing policies for their employees. Challengers to the ETS have already appealed the decision to the Supreme Court.

The Sixth Circuit opinion can be found here.

In the meantime, in response to the Sixth Circuit opinion lifting the stay, OSHA stated that all covered employers were required to come into compliance with all of the ETS’s requirements other than the testing provisions by January 10, 2022. Compliance with the ETS’s testing provisions will be required by February 9, 2022.

The ETS had been on hold since November 12, when a Fifth Circuit panel of judges issued an order instructing OSHA to take no further action to implement or enforce the ETS due to “serious constitutional concerns” raised by the mandate that were the subject of numerous legal challenges. All legal challenges to the ETS were subsequently consolidated before the Sixth Circuit, after which OSHA asked the Sixth Circuit panel tasked with hearing the challenges to lift the Fifth Circuit’s stay order. In its December 17 Opinion, the panel granted that request, paving the way for OSHA to resume implementation and enforcement of the ETS.

The Sixth Circuit’s Opinion rejects the Fifth Circuit’s conclusion that the ETS exceeded the scope of OSHA’s statutory authority under the Occupational Safety and Health Act (the OSH Act) for several reasons.

First, the Court held that OSHA’s authority to issue an ETS to protect workers from a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful” included the authority to regulate infectious diseases and viruses like COVID-19. In doing so, the Court referenced a provision in the OSH Act providing for religious exemptions from any OSHA requirement that employees be subject to “medical examination, immunization, or treatment,” holding that the provision would be rendered meaningless “if the statute did not contemplate both that harmful agents include infectious, disease-causing agents, such as viruses, and that OSHA would employ the use of immunizations to combat those agents.”

Second, the Court found that OSHA has “long asserted its authority to protect workers against infectious diseases,” which it has exercised in the past—with Congressional approval—to regulate the transmission of infectious diseases such as bloodborne pathogens like hepatitis B and HIV. As such, the Court concluded that “OSHA necessarily has the authority to regulate infectious diseases,” even those like COVID-19 “that co-exist in the workplace and in society but are at heightened risk in the workplace.”

Third, the Court rejected the Fifth Circuit’s conclusion that the ETS exceeded OSHA’s statutory authority because the OSH Act contained “no clear expression of congressional intent” to convey to OSHA the authority to issue a vaccine mandate, and courts could not infer a broad expansion of OSHA’s authority on such a “major question.” 
Rather, the Sixth Circuit held that the ETS did not constitute a broad expansion of OSHA’s authority because “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease.”

And finally, the Sixth Circuit held that the preamble to OSHA’s ETS contained sufficient evidence to support the agency’s finding that COVID-19 presents a “grave danger” to workers and that the ETS is necessary to address that danger. In doing so, the Court relied heavily on OSHA’s assertion that the “rapid rise to predominance of the Delta variant” necessitated the ETS because the agency’s “traditional nonregulatory options” had been proven inadequate. The Court also stated that OSHA sufficiently “demonstrated with substantial evidence that the nature of the workplace—commonplace across the country and in virtually every industry—presents a heightened risk of exposure” to COVID-19. The Sixth Circuit also rejected the Fifth Circuit’s conclusion that the ETS was both “over-inclusive” and “under-inclusive,” holding that “OSHA may lean on the side of overprotection rather than under protection when promulgating an ETS.” The Court also upheld the ETS’s applicability only to employers with 100+ employees because OSHA had adequately shown that it selected that “tailored threshold” because “those employers would be best positioned to actually effectuate the standard and their employees are more at risk.”

Also, the Sixth Circuit rejected the constitutional challenges raised against the ETS, finding that OSHA’s issuance of the vaccine/testing mandate was both proper under the Constitution’s Commerce Clause and consistent with the agency’s scope of authority under the non-delegation doctrine.

Takeaways

Employers with 100 or more employees should take immediate steps to come into compliance with all of the ETS’s requirements except the testing provisions by January 10, 2022, when OSHA has said it will begin enforcing the mandate. Employers who choose to permit a testing option for their employees must establish a compliant testing program by February 9, 2022. 
The immediate steps covered employers should take include:

• Developing written policies stating that employees must either be fully vaccinated or take weekly COVID-19 tests and wear face coverings in the workplace;
• Gathering acceptable proof of vaccination from employees and developing a vaccination roster for all employees regardless of vaccination status;
• Establishing COVID-19 testing programs and procedures for those employers who will permit employees to utilize the weekly testing option;
• Providing paid leave for employees to get vaccinated or recover from vaccination side effects;
• Establishing procedures and policies for reviewing and providing religious- or disability-related exemptions from the employer’s mandatory vaccination policy; and

• Requiring that all employees who are not fully vaccinated wear face coverings while in the workplace.