OSHA's Emergency Temporary Standard on COVID-19 Vaccination or Testing Is Back On (for Now)

OSHA published an ETS on Nov. 5, 2021, that applies to employers in all workplaces that are under OSHA's authority and jurisdiction that have more than 100 employees companywide. The ETS requires, with certain exceptions, that covered employees either 1) be fully vaccinated against COVID-19, or 2) wear face coverings and submit weekly COVID-19 test results to the employer. (For additional information about the ETS, see Holland & Knight's previous alert, "OSHA Issues Anticipated Emergency Temporary Standard Regarding COVID-19 Vaccination and Testing," Nov. 5, 2021.)

Various constituencies, including employers, employees, religious organizations and trade groups, quickly challenged the ETS in numerous circuit courts across the country. Just one day after the ETS became effective, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS' enforcement. After the Fifth Circuit stayed the ETS, the judicial panel on multidistrict litigation randomly selected the Sixth Circuit to hear all challenges to the ETS. The applicable statute governing challenges to enforcement of agency orders permits the court randomly selected to hear challenges to enforcement of a final agency action — in this case, the Sixth Circuit — to revoke a stay issued by a prior appellate court.

On Dec. 17, 2021, the Sixth Circuit lifted the Fifth Circuit's stay of the ETS, meaning it is again in effect and enforceable. Dozens of diverse petitioners immediately filed applications before the U.S. Supreme Court to enjoin the Sixth Circuit's decision. The coming days likely will determine the fate of the ETS.

Sixth Circuit Reinstates the ETS

The divided three-judge panel of the Sixth Circuit was comprised of a majority opinion, a concurring opinion authored separately to emphasize that the judiciary should not lightly interfere in agency decisions regarding health science and policy (such as those issued by OSHA), and a dissenting opinion that supported the Fifth Circuit's decision.

The majority opinion rejected the Fifth Circuit's conclusion that the petitioners were likely to succeed on the merits of their claims that OSHA lacked authority to issue the ETS and that the ETS was unconstitutional.

The Sixth Circuit first found that OSHA had statutory authority to issue an ETS to prevent workers from grave danger posed by exposure to physically harmful or toxic "agents," which would include a virus. It found that Congress intended for OSHA to regulate infectious diseases that affect the workplace, and that OSHA has a long history of using its authority to protect workers from infectious diseases.

Next, the Sixth Circuit rejected the application of the "major questions doctrine," which posits that clear congressional authorization is required if an agency acts dramatically to expand its regulatory authority. Here, however, the court noted that "OSHA's issuance of the ETS is not an enormous expansion of its regulatory authority" because of OSHA's longstanding regulation of issues related to workplace health and safety. The majority further deferred to OSHA's extensive findings of fact that COVID-19 presents a workplace emergency, that COVID-19 poses a "grave danger" to workers and that the ETS was "necessary" in that it would reduce the grave danger asserted.

The Sixth Circuit also rejected the petitioners' constitutional challenges. It found that the ETS did not exceed the government's authority under the Commerce Clause by regulating noneconomic activity that falls to the states and that Congress properly delegated authority to issue emergency temporary standards to OSHA. Finally, the court concluded that the "speculative" injuries alleged by the petitioners did not outweigh the harm to the government and to the public interest, and the petitioners offered no concrete evidence of the costs they would incur (employee loss, costs of compliance, etc.), whereas the costs of delaying implementation are high (increased spread, additional deaths and hospitalizations).

The court accordingly lifted the Fifth Circuit's stay of OSHA's large-employer ETS.

Concurring Opinion

The concurring judge fully joined the majority opinion but also wrote "separately to note the limited role of the judiciary in this dispute about pandemic policy." Although reasonable minds could differ, the concurrence declined the opportunity to substitute the judiciary's opinion for that of OSHA.

Dissenting Opinion

The dissent contended that the case should be resolved in petitioners' favor because OSHA exceeded its authority in promulgating the ETS. First, the dissent argued that the "immense authority" given to OSHA to issue emergency temporary standards should not have been delegated by Congress. Next, it contended that OSHA did not appropriately find that the ETS was "necessary" in this case. The dissent argued that OSHA never supported the assertion that the chosen solution was the only one necessary to solve the problem and that other, more narrowly tailored solutions would not have worked.

Further, the dissent contended that there was no "grave danger" shown by OSHA. The dissent also was persuaded that the ETS implicated the "major question doctrine" because it was a decision of "vast economic and political significance" that should not have been delegated by Congress.

Finally, the dissent found that the petitioners would be irreparably harmed without a stay because individuals would have to decide whether to be vaccinated and businesses would be exposed to employee losses and compliance costs.

Supreme Court Applications to Stay Sixth Circuit's Order

After the Sixth Circuit issued its published decision, dozens of diverse petitioners immediately applied to the U.S. Supreme Court to enjoin the Sixth Circuit's order. The petitioners argue that an injunction would aid the Supreme Court's jurisdiction because it was the court that likely would fully and finally resolve the issue. They contend that they face "critical and exigent circumstances" if the Fifth Circuit's stay were lifted and assert that they are likely to succeed on the merits and would suffer irreparable injury absent relief.

Next Steps and Considerations

Employers are undoubtedly exhausted by the constantly changing landscape regarding vaccination. Unless the Supreme Court enjoins the Sixth Circuit's order, however, large employers currently are required to comply with OSHA's ETS. Because of the court challenges and stay, OSHA issued a statement clarifying large employers' compliance deadlines. The statement provides that OSHA will not issue citations for noncompliance with any of the ETS' requirements before Jan. 10, 2022, and will not issue citations for noncompliance with the testing requirements before Feb. 9, 2022, provided that employers exercise reasonable, good faith efforts to comply with the standard.

Given the short deadlines, large employers that have not already begun preparing to comply with the ETS should immediately begin determining employees' vaccination status, keeping confidential records documenting employees' vaccination status, and outlining testing procedures and masking requirements for unvaccinated employees. Unprepared employers faced with upcoming deadlines may have to implement the weekly testing alternative, at least to provide for more time for their workforces to be vaccinated.

The litigation regarding OSHA's large-employer vaccination ETS does not impact the status of OSHA's vaccination requirements for federal contractors, which is currently stayed nationwide, as affirmed by the Eleventh Circuit on Dec. 17, 2021. It also does not impact the vaccination requirement issued by CMS for medical staff at facilities that participate in the Medicare and Medicaid programs, which is currently stayed in 25 states. Although the CMS requirement remains effective in 25 states, CMS announced that it would suspend implementation and enforcement of the requirement pending the ongoing litigation. Unlike OSHA's large-employer ETS, the federal contractor and CMS vaccination requirements do not contain testing alternatives. Court activity should be closely monitored in those pending cases.

For more information or to examine the impact that this decision may have on your practices, contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.