Last month, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination or testing and mask policy. Read our prior analysis of the ETS. Immediately, states, businesses, trade organizations, and others brought challenges to the mandate in every federal circuit court in the U.S., and the Fifth Circuit Court of Appeals granted a temporary injunction prohibiting enforcement of the mandate nationwide. These cases have been consolidated before the Sixth Circuit Court of Appeals, and that Court will soon decide whether to dissolve or modify that injunction and allow the Biden administration to enforce the vaccine-or-test mandate while further litigation is pending.  

The Biden Administration Is Currently Barred from Enforcing the Mandate 

On November 12, the Fifth Circuit entered an order temporarily staying the enforcement of the ETS. In granting the injunction, the Fifth Circuit held that the legal challenges to the Biden Administration’s vaccine-or-test mandate were likely to succeed on their merits. Specifically, the Court found it likely that OSHA had overstepped its authority in issuing an ETS to address an airborne virus that is both widely present in society (as opposed to in any particular workplace) and non-life threatening to most employees. The court also found that the ETS is both overinclusive, in that it fails to account for the differences among workplaces with regard to workers’ susceptibility to COVID-19, and underinclusive, in that it would exclude protections of vulnerable workers employed by smaller companies. 

Further, the court pointed to “serious constitutional concerns” over the potential overreach of the federal government’s authority under the Commerce Clause and violation of separation of powers principles. The Fifth Circuit also held that the financial burden on employers of implementing a policy as well as the hardships associated with losing employees who choose not to comply and on vaccine-hesitant individuals who may be required to choose between their jobs and getting vaccinated constituted irreparable harm.

As a result of the Fifth Circuit’s Order, the Biden Administration can “take no steps to implement or enforce” the ETS until further court order. The Biden Administration announced that it has suspended activities related to enforcement of the ETS but “remains confident in its authority to protect workers in emergencies.” The ETS’s deadline for covered employers to ensure all workers are either vaccinated or tested weekly is January 4, 2022, which is quickly approaching.

The Sixth Circuit Is Close to Ruling on OSHA’s Challenge to the Stay 

On November 23, OSHA filed an emergency motion requesting that the Fifth Circuit’s stay be dissolved or modified by the Sixth Circuit. The Sixth Circuit was chosen at random to hear the consolidated cases through a lottery system under the procedures governing multi-district litigation. Opponents of the mandate largely viewed this as a stroke of good luck, as the Sixth Circuit is predominately comprised of judges nominated by former Republican presidents.  

So far, the Sixth Circuit has declined OSHA’s request to shorten the briefing schedule and expedite a decision on the merits. All responses to OSHA’s motion to dissolve or modify the stay were due on December 7 and OSHA’s reply in support of its motion is due December 10 (tomorrow). Due to the urgency of the matter, it seems likely that the Sixth Circuit will hear arguments and make a decision on OSHA’s motion by the end of the month.  

Although the Sixth Circuit’s decision could still be further appealed to the Supreme Court, and the ruling will only address the temporary injunction and not the merits of the legal challenges to the vaccine mandate, the Sixth Circuit’s ruling will decide the fate of the mandate at least for now. Following the ruling, the Biden Administration will have clear marching orders about what they can and cannot enforce and employers will have clear guidance on what is required of them – pending the results of further litigation.  

What Should Your Company Do While We Wait?

It is unclear what the outcome of the pending litigation will be, but it’s possible that we may see some sort of mixed result, in which parts of the temporary injunction are lifted and others are not. In its emergency motion to dissolve the stay, OSHA argued that, if the Sixth Circuit did not lift the stay entirely, it should allow OSHA to enforce parts of the ETS, namely the masking plus testing requirement and provide an option for employers to adopt COVID-19 policies when state and local requirements limit employers’ authority to require vaccinations, masks and testing. At the same time, OSHA also recently extended the comment period for the ETS from December 6, 2021 to January 19, 2022, stating that it wanted to give various stakeholders more time to review the ETS and collect data and information necessary to comment on the new temporary standard and whether it should become permanent.  

Given all of this, it seems likely that deadlines for compliance with the mandate will be pushed. Nonetheless, it is advisable that employers make preparations and have a plan in place to implement their policy in a timely fashion should the rule prevail in court. Implementing a vaccination policy is a multi-step process, with some steps requiring several weeks to complete. For instance, if an employer chooses to adopt a vaccine mandate without a testing option, it would need to give employees proper notification to allow them to get their vaccinations in time for the deadline. 

Employers should also keep in mind that under OSHA’s General Duty Clause, employers are required to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” By implementing and enforcing a mandatory workplace vaccination policy, employers can help protect their employees from exposure to COVID-19 in the workplace while helping to shield themselves from liability.