Then, on November 16, 2021, the federal Judicial Panel of Multidistrict Litigation consolidated all pending ETS challenges because they all contest whether OSHA has the constitutional authority to issue the ETS. The U.S. Circuit Court of Appeals for the Sixth Circuit will hear these matters collectively but has yet to set a case schedule. However, the Sixth Circuit rules, its decision will almost certainly be appealed to the U.S. Supreme Court, which may decide the ETS’ final fate. Employers, however, should still continue to familiarize themselves with the ETS requirements and plan accordingly because a final decision on the survival of ETS is coming. Based on both the Fifth Circuit’s reasoning and the arguments challengers present, the final decision on ETS enforcement likely will depend on how well OSHA and challengers to the ETS address these issues.

Does COVID-19 pose the danger required to issue an emergency temporary standard?

Under the OSH Act, OSHA may issue an “emergency temporary standard” necessary to protect employees from being exposed to a grave danger from exposure to toxic substances or new hazards. To invoke this statutory authority, OSHA has characterized COVID-19 as a highly contagious and potentially lethal disease caused by a novel virus. OSHA’s attempt to protect the unvaccinated from this danger does differ from existing OSHA regulations, such as those protecting workers from silica or other airborne substances by requiring protective measures, like environmental controls and respirator usage. On the other hand, COVID-19’s effects vary from person to person, with some infections causing mild symptoms, if any. Indeed, opponents are quick to note that early in the pandemic, OSHA stated that it did not have sufficient evidence that COVID-19 posed a grave danger to trigger issuing an emergency temporary standard.

Because COVID-19 infections come from a novel airborne virus, OSHA has maintained that it represents a toxic substance and new hazard. Opponents to the ETS argue that the virus varies in location and toxicity—it does not threaten all workplaces and does not threaten all workers uniformly. Further, opponents argue that because OSHA has recognized COVID-19’s threat for the past 18 months, it hardly qualifies as a “new” hazard. OSHA has stated that it created the ETS to address a new type of COVID-19 hazard: the Delta variant and other potential mutations.

Does the vaccination mandate exceed OSHA’s emergency authority?

OSHA may only issue regulations within the scope Congress permits. Accordingly, OSHA’s emergency temporary standards cannot exceed what is “necessary” to protect employees from the grave danger COVID-19 poses. Pointing to research from the past 18 months, OSHA has determined that it must require vaccination or other preventative measures to protect all workers from the COVID-19 hazard. Challengers to the ETS argue that the vaccination requirement goes beyond the necessary measures to protect against COVID-19 because it orders vaccination for all workers, some of whom may not face exposure to COVID-19. Further, opponents to ETS argue that by excluding employers with fewer than 100 employees from the ETS, OSHA suggests such employers do not face a COVID-19 threat, undermining OSHA’s claim about an “emergency.” The ETS, however, provides a testing and masking option for employees who opt out of vaccination. OSHA is exploring whether to expand the ETS’s scope to include employers with fewer than 100 employees.

Does the ETS contradict OSHA’s prior Healthcare ETS?

In 2020, OSHA rejected requests from unions and other groups to issue a COVID-19-related emergency temporary standard. Also, in response to a January 2021 executive order tasking OSHA with evaluating whether the pandemic necessitated an emergency temporary standard, the agency issued such a rule on June 21, 2021. That standard applied primarily to the healthcare industry and did not contain any vaccination mandate. Opponents of the current ETS argue that because on multiple occasions OHSA already deemed a vaccine mandate unnecessary, no such necessity exists now for the ETS or its vaccination requirements. OSHA has cited new virus variants as grounds for its changed position. That explanation will likely run into a claim that it only serves as a pretext for advancing a presidential agenda. Prior challenges to agency motivation and discretion have encountered difficulty in prevailing, but courts have struck down six of OSHA’s nine prior emergency temporary standards.

Does the current pandemic necessitate the ETS’s disruption and cost to existing business operations?

ETS opponents may point to potential business disruptions to show its infeasibility. Such determinations rely on economic analysis and projections, largely a fact-sensitive inquiry. To support the ETS, however, OSHA needs only substantial evidence—less than 50%, but more than a “scintilla,” a standard that leans in OSHA’s favor. Arguments along these lines would need to overcome this evidentiary challenge, although prior contests to emergency temporary standards have.

Attempting to discern what the final court ruling on the ETS will say would amount to speculation. Erring on the more prudent side, employers should prepare for the federal courts to reinstate the ETS and continue plans for how to comply with the vaccine mandate and related requirements. The lawyers at Cohen Seglias will continue to monitor developments in ETS enforcement closely and are prepared to assist employers in finalizing compliant vaccination policies.