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December 22, 2021 | Legal Advisory

On November 4, OSHA issued an Emergency Temporary Standard (“ETS”) that sets forth, among other requirements, the parameters of the vaccine mandate applicable to large private-sector employers. To learn more about the requirements of the ETS please read Nutter’s legal advisory, “OSHA Issues Temporary Standard Governing Vaccine Mandate for Large Employers” or view the Nutter webinar New Rules for Employers on Employee COVID-19 Vaccination.

On December 17, 2021, the United States Court of Appeals for the Sixth Circuit dissolved the nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 ETS that the United States Court of Appeals for the Fifth Circuit had issued in November. This ETS, which was issued by OSHA on November 5, 2021, requires employers to ensure their employees are vaccinated or, if unvaccinated, that they wear protective face coverings and take weekly COVID-19 tests. The ETS applies to all employers with 100 or more employees.

Background

After OSHA issued the ETS in early November, states and employers across the nation filed lawsuits challenging its constitutionality. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit temporarily enjoined the enforcement and implementation of the ETS, and a week later, issued a nationwide preliminary injunction. Following this ruling, OSHA filed an emergency motion to dissolve the stay.

The many legal challenges to OSHA’s ETS, including the Fifth Circuit case, were consolidated into one case. Pursuant to what is known as the Judicial Panel on Multidistrict Litigation procedures, a lottery was held to determine which United States Circuit Court of Appeals would hear all pending challenges to the ETS. Through the lottery process, the Sixth Circuit was selected to hear the case.

The Sixth Circuit’s Decision on December 17, 2021

In a 2–1 decision, a three-judge panel of the Sixth Circuit rescinded the Fifth Circuit’s nationwide stay. The decision, authored by Judge Jane Stranch, relied on what the Court found to be OSHA’s authority to regulate viruses and infectious diseases. The Court’s decision noted that the law conferred authority on OSHA to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses in the workplace. 

In its opinion, the Court concluded that the challengers’ arguments that OSHA exceeded its statutory authority by issuing the ETS and that OSHA failed to establish the requirements necessary to issue the ETS are not likely to succeed on their merits. The Court held that OSHA had acted within its statutory authority because the Occupational Safety and Health Act “requires OSHA to issue an emergency standard if necessary to protect workers from a ‘grave danger’ presented by ‘exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” The Court concluded that regulating an “agent that causes bodily harm—a virus—falls squarely within” OSHA’s authority.

Notably, the Court concluded that OSHA, through the ETS, was not requiring that anyone be vaccinated. Rather, the Court noted, the ETS allows employers to determine how best to minimize the risk of employees contracting COVID-19 in the workplace – employers can require vaccinations, but might also require unvaccinated workers to wear masks at work and test weekly or might require employees to work remotely. 

OSHA’s Response

The Department of Labor and OSHA responded swiftly to the Sixth Circuit’s decision. On the evening of December 17, OSHA released a statement that made clear that OSHA is moving forward with implementation and enforcement, but did provide some enforcement relief for employers who in good faith seek to comply with the ETS:

“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 [2022] and will not issue citations for noncompliance with the standard’s testing requirements before February 9 [2022], 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’s Next?

Within an hour of the Sixth Circuit’s decision, numerous parties filed an emergency application and motion with the United States Supreme Court, requesting that the stay be reissued. In the early morning hours of December 18, 27 State Attorneys General, and a number of private entities, also filed an emergency application for a stay. The applications argue, among other things, that OSHA has exceeded its authority, that COVID-19 does not present the type of “grave” danger the statute requires, and that the ETS will inflict irreparable harm against many private employers.  

Despite the emergency appeal applications, employers should continue preparing to comply with the ETS by the deadlines discussed above. We will continue to monitor developments and provide updates on the legal proceedings as they move forward and are available to assist employers develop plans for compliance.

This advisory was prepared by Liam O’Connell and Andrew Farrington in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact any member of the LEB group or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.