Sixth Circuit Re-Activates OSHA’s Private Employer Vaccinate-or-Test Rule; New Enforcement Deadlines Set

The ETS, which requires employers with 100 or more employees to implement a policy requiring employees to be fully vaccinated for COVID-19 or be subject to weekly testing and mask-wearing standards, was originally issued on November 5, 2021, but was rendered unenforceable on November 6 pursuant to a nationwide stay order. Many business groups, unions, and others filed challenges to the ETS across most federal circuit courts, and a multi-circuit “lottery” was held to determine which court would hear the combined challenges. The Sixth Circuit “won” the multi-circuit lottery and a three-judge panel decided the case.

Sixth Circuit Decision to Overturn the Stay

The three-judge panel of the Sixth Circuit was comprised of Judge Jane Stranch (a Barack Obama appointee), Judge Julia Smith Gibbons (a George W. Bush appointee), and Judge Joan Larsen (a Donald Trump appointee). In a 2-1 decision, with Judge Larsen dissenting, the court rejected much of the Fifth Circuit’s previous decision, finding that none of the four stay factors – 1) the petitioner’s likelihood of success on the merits, 2) irreparable injury to the petitioner if the stay is not granted, 3) substantial injury to other parties interested in the litigation if the stay is granted, and 4) the public interest – weighed in favor of maintaining the stay.

The court made a series of findings in reaching that conclusion, including that the ETS is within OSHA’s statutory authority to issue emergency standards 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 noted that this includes infectious diseases and viruses that are “not unique to the workplace,” pointing to OSHA’s prior HIV, hepatitis B, and hepatitis C standards. The court further found that the ETS is “not a novel expansion of OSHA’s power,” but instead is “an existing application of authority to a novel and dangerous worldwide pandemic.”

When it issued the stay in November, the Fifth Circuit had decided that OSHA failed to demonstrate a “grave danger” to affected workers because it did not make findings of exposure to COVID-19 in all covered workplaces. The Sixth Circuit held that this “is simply wrong,” and if true, would render OSHA’s emergency standard authority power meaningless because “no hazard could ever rise to the level of ‘grave danger’ because a risk cannot exist equally in every workplace.” Here, OSHA sufficiently established “grave danger” through evidence demonstrating the spread of COVID in congregate settings, that the unvaccinated are at higher risk of infection and death, and that more than 800,000 Americans have died from the virus. The court also rejected arguments about the constitutionality of OSHA’s ETS powers.

One of the challengers’ arguments was that OSHA’s failure to promulgate a standard earlier in the pandemic indicated a lack of emergency. To this, the court responded, “OSHA addressed COVID-19 in progressive steps tailored to the stage of the pandemic, including consideration of the growing and changing virus… [t]his reasoned policy determination does not undermine the state of emergency that this unprecedented pandemic currently presents.”

The challengers also argued that without a stay, they would be subject to large economic costs to comply with the standard, and would be required to suspend or terminate unvaccinated employees. The court found the injuries were “entirely speculative,” and that the ETS accounts for both because businesses that face “true impossibility of implementation” may assert that as a defense to an OSHA citation, and unvaccinated employees have accommodation options and the mask-and-test alternative available in lieu of termination. By contrast, “the costs of delaying implementation of the ETS are comparatively high” because a stay would “risk compromising” the 6,500 worker lives and 250,000 hospitalizations OSHA claims the standard will save, “indisputably a significant injury to the public.”

New Enforcement Deadlines

The Sixth Circuit’s decision allows OSHA to begin enforcing the terms of the ETS. On Friday night, OSHA issued a statement that it will “not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Thus, all employers with 100 or more employees must come into compliance with all ETS standards except the testing requirement by January 10 and must come into compliance with the testing requirement for unvaccinated employees by February 9. OSHA’s statement appears to allow for a possibility of earlier enforcement measures against businesses that have not, prior to the January 10 and February 9 deadlines, made any “reasonable, good faith efforts” to implement compliant practices.

Several groups have already appealed the Sixth Circuit’s decision to the U.S. Supreme Court. Previously, the Court denied a challenge to New York’s vaccine mandate for health care workers and denied challenge to a similar rule in Maine, and it ruled similarly on these challenges. That said, OSHA’s ETS is not limited to health care workers as were the mandates at issue in Maine and New York, and any prediction on how the Court might rule would be speculative at this time. However, until and unless the Court accepts the appeal and rules otherwise, the Sixth Circuit’s decision lifting the stay, and allowing for OSHA’s enforcement of the ETS, is in effect.

For questions about the ETS and implementation deadlines, please contact Schiff Hardin’s Labor and Employment Group.