Perhaps recognizing that the Supreme Court’s final decision on the ETS remains a relatively long way away, OSHA announced a temporary ETS enforcement policy. It will not issue citations for noncompliance with any ETS requirements before January 10, 2022, and will not issue citations for noncompliance with the ETS testing requirements before February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

With the ETS back in effect, employers, and contractors, in particular, need to finalize and re-implement their vaccination policies to meet the new OSHA timetable, unless the Supreme Court says otherwise. Among other things, employers should take steps to determine the vaccination status of their employees and distribute their final written vaccination policies by January 10, 2022. Employers should also arrange for employees who are not fully vaccinated to undergo weekly testing beginning February 9, 2022. By implementing these measures now, employers will be prepared to comply with OSHA’s new timetable should the Supreme Court uphold the Sixth Circuit’s decision.

Earlier posts provide more specific guidance on ETS compliance, particularly for construction contractors. However, the Sixth Circuit’s decision may also have implications for federal contractors. Under OSHA’s current guidance, the ETS does not apply to federal contractors because they “are already covered by the protections” of the Safer Federal Workplace Taskforce COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors. However, on December 7, 2021, a federal court in Georgia issued a nationwide injunction, halting enforcement of this Biden administration’s COVID-19 vaccine mandate for federal contractors. With the federal contractors COVID-19 vaccine mandate on hold, OSHA may take the view that no federal contractor is “covered by the [federal mandate’s] protections”; therefore, the ETS now applies to such federal contractors with 100 or more employees. Should OSHA revise its current guidance accordingly, such action would likely face additional litigation nationwide.

It may take a long time before the Supreme Court ends the uncertainty about the ETS given the complex issues underlying the current dispute, as the Sixth Circuit’s decision reflects. Tracking the structure of the Fifth Circuit’s decision, the Sixth Circuit addressed OSHA’s scope of authority under the statute allowing emergency regulations and the ETS’s necessity. The Sixth Circuit found that the statute affords OSHA the power to issue the ETS to address the COVID-19 hazard based on the plain meaning of the statute’s words, specifically “toxic or physically harmful” “substance or agents” that pose “grave danger.” To support interpreting these words as giving OSHA authority to issue regulations to protect against COVID-19, the court pointed to other OSH Act provisions and other statutes that grant OSHA authority to issue regulations addressing infectious diseases. As well other existing regulations that address hazards similar to COVID-19 (e.g., bloodborne pathogens) also show that OSHA has the authority to issue the ETS.

In assessing whether the ETS exceeds what is necessary to address COIVD-19, the Sixth Circuit first noted that under existing precedent, courts must give great deference to the data, facts, and scientific analysis underlying any OSHA policy. Further, OSHA only needs to show that the ETS is needed to alleviate the hazard, not that no other less restrictive measure would address COVID-19. With that framework, and noting OSHA’s lengthy and exhaustive explanation for the ETS in its preamble, the Sixth Circuit accepted, as it should, OSHA’s premise that new coronavirus variants have created a new emergency that warrants the ETS. Further, OSHA sufficiently demonstrated that COVID-19 and its emerging variants pose a prevalent and grave danger in the workplace, even if, as with other hazards, not every worker faces such danger. Regarding any skepticism about an emergency measure coming more than 18 months after the pandemic began, the Sixth Circuit explained that new scientific information and developments, such as the novel variants, make OSHA’s prior measures—offering guidance and issuing citations for general duty clause violations—ineffective. As to criticisms about the ETS’s over-inclusive and underinclusive scope, the Sixth Circuit again deferred to OSHA’s investigation and determinations about how it targeted the policy to have the greatest effect on controlling COVID-19.

Because the Fifth and Sixth Circuits diverged on both the range and basis of OSHA’s authority, the Supreme Court will ultimately have to decide the limits of administrative agency discretion and power and the courts’ deference. On the one hand, the ETS falls well within prior regulations OSHA has issued, but on the other hand, its far-reaching effects give it a flavor well beyond traditional workplace rules about technical matters such as ladder heights and airborne silica concentrations. Possibly the recent dangers from another wave of variant-related infections will favor deference to OSHA’s authority to issue the ETS as a way to protect not only workers but also the workplace and the nation’s economic functioning.

Cohen Seglias is closely monitoring the litigation surrounding the ETS and will provide additional updates and guidance as the situation develops.