On December 17, 2021, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) that had previously been issued by the U.S. Court of Appeals for the Fifth Circuit.  We summarized the Fifth Circuit’s opinion explaining its decision to impose the stay in a previous post.

Last month, the Sixth Circuit – one of 12 different federal Circuit Courts of Appeals in which lawsuits challenging the ETS were filed – was selected to hear the consolidated cases and ultimately decide whether the ETS is a valid exercise of OSHA’s authority.  After the cases were consolidated in the Sixth Circuit, OSHA moved to dissolve the stay previously issued by the Fifth Circuit.  On December 17, the Sixth Circuit granted OSHA’s motion.

The Sixth Circuit Opinions

The Sixth Circuit’s decision produced three opinions.  Judge Jane Branstetter Stranch, an Obama appointee, authored the majority opinion, and Judge Julia Smith Gibbons, a George W. Bush appointee, issued a concurrence.  Judge Joan Larsen, a Trump appointee, dissented from the court’s decision. The full opinion is found here.

The opinion by Judge Stranch addresses each of the many reasons that the Fifth Circuit Court of Appeals had offered in support of the stay.  Judge Stranch wrote that OSHA clearly has the power under the Occupational Safety and Health Act to regulate viruses, including those that simultaneously exist in and out of the workplace.  She also concluded that OSHA had met its burden to show that the ETS was necessary to protect employees from the grave danger posed by COVID-19 in the workplace.  The opinion also refuted the Fifth Circuit’s position that the ETS should be stayed because it is both overinclusive and underinclusive, noting that an agency is not required to act with “pinpoint precision” in issuing the ETS to alleviate a grave danger, even if it cannot eliminate the danger altogether.  Finally, Judge Stranch rejected the constitutional challenges to OSHA’s authority under the Commerce Clause and the non-delegation doctrine.

Judge Gibbons joined Judge Stranch’s opinion and issued a one-page concurrence noting the limited role of the judiciary in the dispute over the ETS.  Judge Gibbons wrote: “Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities. . . .  Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution.”

In her dissent, Judge Larsen argued that Congress had narrowly circumscribed OSHA’s authority to issue emergency standards and that OSHA must show that the ETS is “essential” or “indispensable” to alleviate the grave danger posed by COVID-19.  Judge Larsen questioned whether OSHA has adequately proven that all unvaccinated workers, regardless of age, face a grave danger from COVID-19 in the workplace. The dissent also asserted that OSHA failed to meet its burden to show that the nationwide vaccine-or-testing mandate was necessary, given that other, more narrowly-tailored means were available to achieve the same ends.

Finally, Judge Larsen would have also kept the stay in place under the major questions doctrine.  In Alabama Association of Realtors v. Department of Health and Human Services, the United States Supreme Court recently struck down the CDC’s eviction moratorium in counties experiencing high levels of COVID-19 transmission.  The Supreme Court invoked the major questions doctrine, writing that, in order to have delegated such broad authority concerning an issue of “vast economic and political significance” to the CDC, Congress would have had to use “exceedingly clear language.”  Judge Larsen’s dissent noted that OSHA’s vaccine-or-test mandate similarly has “vast economic and political significance” and that the major questions doctrine should apply.  “[OSHA] asks for maximum authority and maximum discretion; [it] wants to issue a rule of national import, covering two-thirds of American workers, and [it] wants to do it without clear congressional authorization, without even public notice and comment, and with a capacious understanding of necessity.  Such a combination of authority and discretion is unprecedented, and [OSHA] is unlikely to show that [OSHA] has been granted it.”

For now, the OSHA ETS is not subject to any court stay and OSHA can move forward.  However, several parties challenging the ETS have already gone to the U.S. Supreme Court and filed emergency applications for a stay of the ETS pending further judicial review.  The applications were addressed to Justice Brett Kavanaugh, who is the “Circuit Justice” for the Sixth Circuit.  He may rule on the applications himself or refer them to the full Court. Such applications are handled by the Court “on paper”, without oral argument.

In the meantime, OSHA has published the following statement on its website concerning the deadlines for businesses to comply with the ETS:

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.

What Should Employers Do Now?

Pending a ruling on the emergency applications to the Supreme Court, covered employers (those with 100 or more employees) should move forward with plans to comply with the ETS.  The next steps would include:

1. Decide how your business will choose to comply with the ETS. Covered employers must either require employees to become fully vaccinated for COVID-19 or adopt a policy that requires any unvaccinated employees to submit to weekly COVID-19 testing and wear a face covering when working indoors. Employers may also choose to require vaccinations for certain groups of employees (i.e., those in customer-facing positions) while granting the testing option to other groups.  Also, consider whether certain groups of employees – such as those who work exclusively outdoors – are exempt from the requirements of the ETS.
2. Issue a communication to employees informing them that the stay of the ETS has been lifted and that the company is moving forward with plans to comply at this time. This communication would also inform employees of how the company plans to comply with the ETS (i.e., require employees to become fully vaccinated, or submit to weekly testing and wear a face covering); the general requirements of the ETS; and the compliance deadlines.
3. Direct employees to provide the company with acceptable proof of vaccination status (such as a copy of their COVID-19 Vaccination Record Card), if they haven’t already done so. Employers must also establish an appropriate process for the maintenance of vaccine records – which must be maintained as confidential medical records – and this should normally be coordinated through human resources.
4. Prepare to provide support for vaccination by January 10, 2022. The ETS requires covered employers to provide a reasonable amount of time, including up to 4 hours of paid time off, for employees to get each vaccine dose during work hours.  The 4-hour paid time off requirement cannot be offset by other leave that employees have accrued, such as sick leave or PTO.  In addition, employees must be allowed “reasonable time and paid sick leave” to recover from side effects experienced following vaccination.  If the employee has accrued paid sick leave or PTO available, the employer may require the employee to exhaust such accrued sick leave or PTO for time off to recover from side effects.  These paid time off provisions apply only to the primary doses of the vaccine and are not required for booster shots.
5. Draft your company’s COVID-19 Vaccination or Testing Policy so that it can be issued prior to January 10, 2022. Assuming that a testing option will be available to employees, the employer must decide whether unvaccinated employees will be required to pay for the cost of testing, and how the company will obtain the necessary test results.  While the ETS permits employers to pass these costs along to unvaccinated employees, the administration is also moving forward to require health insurers to cover the cost of testing.  Over-the-counter antigen tests are permitted for purposes of compliance so long as their administration is observed by either an authorized telehealth proctor or the employer.
6. Establish a procedure for employees to request exemptions from the vaccine (if mandated), testing, and/or face covering requirements because of a disability or sincerely held religious belief.

Our original blog article summarizing the ETS can be found here.

At workplaces where the employees are represented by a union, employers may have a duty to bargain with the union over both discretionary and nondiscretionary requirements of the ETS.  In that regard, the General Counsel’s Office of the National Labor Relations Board recently issued Operations-Management Memorandum 22-03 setting forth the General Counsel’s position on employers’ bargaining obligations under the ETS.  The General Counsel’s position is that employers covered by the ETS have decisional bargaining obligations over aspects of the ETS that give employers choices (or discretion) regarding implementation.  To the extent elements of the ETS do not give employers discretion, employers may still have a duty to bargain over the effects.