Alert

OSHA Vaccine Rule Is Back On, Pending Final Supreme Court Ruling

December 21, 2021

On December 17, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati dissolved the stay on enforcement of OSHA’s COVID-19 Emergency Temporary Standard (ETS), known colloquially as the vaccine mandate. The ETS was subject to a temporary stay issued by the Fifth Circuit in New Orleans on November 12, 2021. The Sixth Circuit’s decision means the ETS will now go into effect on a slightly altered schedule, unless the Supreme Court releases guidance otherwise in the interim.

In deciding to dissolve the stay, the Sixth Circuit reasoned that the ETS does not mandate vaccinations, only that employees in workplaces employing more than 100 employers either (1) be vaccinated against COVID-19 or (2) wear a protective face covering and take weekly tests. OSHA’s historical authority to  prevent the spread of viruses such as HIV and hepatitis and regulate general health hazards was persuasive in finding it also has the authority to implement safety standards around the SARS-CoV-2 virus.

The appellate court also rejected petitioners’ argument that COVID-19 did not constitute a “grave danger” as required for OSHA to enact an emergency standard, comparing the vast effect of the pandemic on the country and world to past “grave dangers” OSHA has enacted standards for, including to protect workers after 80 asbestos-related deaths over the course of 6 months. The court further declined to follow the Fifth Circuit’s reasoning that petitioners had a chance of success on the merits of their constitutional law claims and found that implementing the ETS would not cause irreparable harm to the petitioners, their business, or their employees.

As to the decision’s effect on employers, OSHA released a statement following the dissolving of the stay which addresses its effect on the original time periods in the rule. Rather than strictly enforcing the original January 4, 2022, deadline for employees to be reported as either vaccinated or undergoing testing, the agency is “exercising enforcement discretion” regarding citations. No employers will be issued citations for noncompliance before January 10, and any employer making good faith efforts to come into compliance with the testing requirements will not be cited before February 9.

Being an emergency rule, the ETS temporarily bypasses the 60-day period typically required of an OSHA standard, where public hearings are held before the Secretary of Labor determines whether to implement it. Rather, the standard goes into effect immediately and is evaluated by the Secretary after six months to determine if it should be promulgated. Additionally, if employers demonstrate alternative methods to promote “safe and healthful” workplaces, they may be eligible for a “variance” from any OSHA standard, including the ETS.

Because the Panel on Multidistrict Litigation randomly selected the Sixth Circuit as the consolidated venue for all challenges to the OSHA ETS, the Supreme Court will be the final place to appeal its validity. Many petitioners to the original suits have filed applications to reinstate the stay and/or writs of certiorari for the case to be heard by the Supreme Court already. Some petitioners argue that the ETS violates religious freedoms, that the stay will be damaging to businesses, and that OSHA has exceeded its constitutional authority in enacting the policy, among others. Responses are due from OSHA and the Department of Labor by December 30.

McGlinchey is actively monitoring the development of the ETS and preparing policies for employers that cover best practices both legally and practically in dealing with the pandemic. If you have questions or concerns about implementing a vaccination policy or need help drafting one, contact McGlinchey’s Labor and Employment team.