Of all of the vaccination mandates issues by the federal government, OSHA’s emergency temporary standard (“ETS”) has likely received the most attention lately. The enforceability of the ETS, or lack thereof, has been a constantly-moving target. On December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the Court of Appeals for the Fifth Circuit’s nationwide stay on the enforcement of the ETS—setting the stage for possible en banc review or a writ of certiorari to the Supreme Court. An analysis of both decisions may provide some insight as to how arguments in favor of and against the ETS will be made at the highest level.
The ETS:
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued the ETS, which applies to private employers with 100 or more employees. Generally-speaking, the ETS requires covered employers to develop, implement, and enforce mandatory COVID-19 vaccination policies for all covered employees, while also permitting, as an alternative, policies requiring covered employees to either get vaccinated or consent to weekly COVID-19 testing. The ETS likewise requires employers to determine the vaccination status of employees, obtain acceptable proof of vaccination, and maintain records, plus a roster, of vaccination status. The ETS also requires employers to provide up to four hours of paid leave to receive each vaccination dose, plus paid sick leave to recover from any side effects resulting from the same.
Originally, the ETS set a December 6, 2022 deadline for employers to prepare their COVID-19 vaccination policies and to begin have unvaccinated employees wear masks in the workplace. The ETS also set a January 4, 2022 deadline for employers to ensure that employees who were not fully vaccinated were tested for COVID-19 at least weekly.
Immediate Pushback – BST Holdings et al. v. OSHA
Just one day after OSHA’s issuance of the ETS, dozens of businesses, individuals, and state governments sought an emergency stay of the ETS in the Court of Appeals for the Fifth Circuit. The court granted the stay pending further action by the court, based on potential “grave statutory and constitutional issues.”
On November 12, 2021, the Fifth Circuit, in a scathing opinion, issued a permanent stay of the ETS, nationwide, pending judicial review of the same. The court found that each of the factors analyzed when deciding whether to issue a stay—1) a likelihood of success on the merits; 2) irreparable injury in the absence of a stay; 3) whether a stay will substantially injure other parties interested in the proceeding, and; 4) where the public interest lies—were all satisfied by the petitioners.
Regarding the first factor, the court described the ETS as a “one-size-fits-all sledgehammer” that manages to be both overinclusive (by including both high-risk employees and employees who have next-to-no risk at all) and underinclusive (by excluding employers with 99 employees or less, notwithstanding that some of those employees may be particularly vulnerable to COVID-19). The court also found that the ETS was flawed because there was no evidence that all covered employees have been or will be exposed to COVID-19, and it was still unclear as to whether COVID-19 is the sort of “grave danger” that the ETS standards under the OSH Act contemplate. The court also concluded that the ETS was unjustifiable under the Commerce Clause as an unconstitutional exercise of police power, traditionally reserved to individual states, because the individual decision to not get vaccinated is “noneconomic inactivity.” Last, the Court also questioned whether COVID-19 could even fall under the OSH Act’s statutory language justifying the ETS, as the Court disagreed that a virus could constitute a “substance” or “agent” determined to be “toxic or physically harmful.”
Regarding the remaining factors, the Court found that while employers and employees would be irreparably injured by the burden of either getting vaccinated or shouldering the cost of weekly testing, OSHA itself would not be burdened at all by the issuance of a stay. The court concluded that a stay of the ETS is in the public interest, as a stay would maintain the “liberty of individuals to make intensely personal decisions according to their own convictions.” As a result of the Fifth Circuit’s decision, OSHA suspended any and all enforcement of the ETS, and employers were left wondering what was next.
Whiplash – Mass. Building Trades Council et al. v. OSHA
Given the sheer number of petitions challenging the ETS across the nation, the U.S. Judicial Panel on Multidistrict Litigation consolidated the challenges before the Court of Appeals for the Sixth Circuit, which drew the selection via lottery. Shortly thereafter, the government moved to dissolve the stay passed by the Fifth Circuit.
The Sixth Circuit issued its opinion in a two-to-one decision on December 17, 2021 and dissolved the stay in its entirety. The court first criticized the Fifth Circuit for reading the phrase “substance or agent” in a vacuum (i.e., that COVID-19 does not fit within that phrase), noting that the OSH Act and the Commerce Clause clearly gave OSHA the authority to regulate infectious diseases and agents for the purposes of preventing the burden on interstate commerce caused by illnesses arising out of work situations.
The court also found that the Fifth Circuit’s contention that there must be proof of exposure in all covered workplaces was legally erroneous because risks cannot exist equally in every workplace and the entire ETS standard would be meaningless if such a showing were required. The court likewise determined that the Fifth Circuit did not take all of the record evidence of the harm caused by COVID-19 into account when determining that COVID-19 was not necessarily a “grave danger” contemplated by the OSH Act ETS standards—particularly given the harm and uncertainty caused by the Delta and Omicron variants of the disease. Further, the “overinclusive” and “underinclusive” arguments raised by the Fifth Circuit were, according to the Sixth Circuit, unpersuasive because the ETS is an emergency measure, and OSHA was permitted to veer on the side of caution when fashioning the measure. Last, the court noted that the Fifth Circuit’s Commerce Clause arguments were misplaced because the ETS regulates employers, not individuals who may or may not choose to be vaccinated.
Regarding the remaining factors, the Sixth Circuit found that the petitioners would not suffer irreparable harm in the absence of a stay because the ETS itself contemplates variances, accommodations, and the option to mask-and-test which, as shown by OSHA’s data, would not be a costly as the Fifth Circuit assumed. Conversely, both the government and the public interest would be harmed by the stay, given the rising death toll from COVID-19 and the devastating impacts to businesses and the healthcare system resulting from the continued spread of the disease.
Now What? – Takeaways
It seems clear that the ETS dispute is on a collision course to the Supreme Court. At least as of now, because the ETS stay has been lifted, employers should plan on complying with the same. OSHA has indicated that it will not issue citations for noncompliance with the ETS before January 10, 2022, and will not issue citations for noncompliance with testing requirements before February 9, 2022, so long as an employer is making reasonable, good faith efforts to comply. In any event, while OSHA and the government have won the battle for the ETS, the war is not yet over.
