In the latest chapter in the dizzying fight over private employer vaccine mandates, on December 17, 2021, the Sixth Circuit Court of Appeals lifted a sister appellate court’s stay of the Occupational Safety and Health Administration’s (OSHA) requirement that employers with 100 or more U.S. employees require vaccination or weekly testing and face coverings as part of a comprehensive COVID-19 mitigation strategy. As we previously reported, President Biden announced in September 2021 that he would be directing OSHA to adopt rules that require vaccination or testing, which rule (the OSHA Emergency Temporary Standard, or ETS) was published in early November, to mixed reviews. So mixed, in fact, that nearly three dozen lawsuits were filed to permanently stay or invalidate the ETS. The first to result in a decision was heard by the Fifth Circuit Court of Appeals, a panel of which concluded in a 2-1 decision that implementation of the ETS should be stayed as the measure was not required and exceeded the scope of OSHA’s authority. From there, the various suits filed across the country seeking to invalidate the ETS were consolidated for review by a single court, the Sixth Circuit Court of Appeals. A historically conservative jurisdiction, many assumed that the Sixth Circuit Court of Appeals would follow the Fifth Circuit and deem the ETS unconstitutional, or at least improvidently issued. Even OSHA appeared skeptical that the ETS would survive the Sixth Circuit’s review, as the agency published a statement on its website staying its own rule pending judicial review.
However, in a surprise decision, the Sixth Circuit has lifted the stay of, and reinstated, the ETS, which will affect approximately 80 million American workers. The Court noted that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The Court agreed with the Department of Justice (DOJ), which argued in support of the Biden administration measure, that with new COVID-19 case numbers rising and the emergence of new variants like the highly contagious Omicron variant, the threat to workers is sufficient to give OSHA authority to implement steps to slow the spread in order to protect the safety and health of U.S. workers. The Court rejected claims by the petitioners that mandatory vaccination or testing requirements impose substantial costs on businesses and risk further staffing shortages, finding that OSHA had conducted robust economic analyses before issuing the ETS demonstrating the feasibility of implementing the standard, and that concerns to the contrary are “entirely speculative.” Circuit Judge Jane B. Stranch, an Obama appointee writing for the panel, concluded that the ETS “is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” all of which, the panel concluded, outweighed any irreparable injury to the petitioners subject to a vaccination-or-testing policy.
As a result of the legal skirmishing, the initial deadlines for compliance with the ETS have passed, but now, unless the Supreme Court takes up the issue and rules promptly, the vaccine-or-test requirements are set to take effect on January 4, 2022. With the holidays falling between now and the deadline, employers are urged to use their final days before the holiday to make plans if they haven’t already for ascertaining vaccination status, implementing secure recordkeeping practices, and preparing for testing procedures and scheduling snafus likely to plague (no pun intended) larger workforces immediately upon return to the office in the New Year. As a reminder, we have developed OSHA-compliant ETS policies for employers now facing a short timeline for compliance, at least until the next chapter in this story is written.