A federal appeals court on Friday revived the sweeping vaccine mandate for employers with 100 or more employees imposed by the Occupational Safety and Health Administration, but its fate remains unclear amid an immediate flurry of appeals to the U.S. Supreme Court.
As soon as OSHA’s emergency temporary standard (ETS) was published in the Federal Register on November 5, 2021, litigants raced to the courthouse to file multiple challenges to the rule. On November 12, the 5th Circuit Court of Appeals stayed the ETS pending further judicial review and directed OSHA to take no steps to implement or enforce it until further court order.
With similar challenges pending in courts throughout the country, the Judicial Panel on Multidistrict Litigation conducted a lottery to select one appeals court to hear the consolidated litigation, drawing from a drum containing an entry for each circuit wherein a constituent petition for review was pending. The Cincinnati-based 6th Circuit “won” the lottery and was empowered to modify or nullify the stay issued by the 5th Circuit.
On Friday evening, December 17, 2021, the 6th Circuit, by a 2-1 vote, dissolved the stay. In its opinion, the court’s majority stated its rationale:
The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration … the federal agency tasked with assuring a safe and healthful workplace.
The dissenting judge, like the 5th Circuit, articulated extensive and detailed reasons as to why the ETS is an unlawful exercise of OSHA’s authority.
Because the stay has been lifted by the 6th Circuit – at least for now – the ETS is no longer blocked from being implemented.
Later on Friday night, multiple requests to reimpose the stay were filed with the U.S. Supreme Court. In the coming weeks, the justices will have the final say as to whether the ETS goes into effect.
In response to the 6th Circuit decision, OSHA has advised employers that it will not impose penalties until the dust settles. It posted this notice on its website:
Litigation Update
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, 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.
These developments bear continued scrutiny since employers will be forced to scramble if the Supreme Court leaves the ETS intact. Prudent employers will implement or continue to plan for the immediate roll out of compliance with the ETS so as to exercise reasonable, good faith efforts to comply.
Employers also can opt to voluntarily implement a vaccine mandate or impose required testing for COVID-19. In certain states, employers may be required to pay for testing and may have to record and pay for time associated with getting vaccinated, for testing and/or for time off from work if there is an adverse reaction to vaccination. In Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah and West Virginia, there are additional compliance issues that arise from state requirements which either ban vaccine mandates or limit mandates by requiring consideration of more expansive reasons for an exemption (e.g. on account of natural immunity or personal belief).
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