On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) that implemented a “vaccinate-or-test” mandate for large, private employers.1 The ETS spurred a flurry of lawsuits in federal courts nationwide. This article provides an overview of the ETS and details the key litigation developments since its issuance.
I. Key Provisions of the ETS
The ETS applies only to employers with 100 or more employees.2 Certain employees, however, are exempt from the ETS mandate, including those who do not report to a physical workplace where other individuals are present, work exclusively outdoors, or work from home.3 Most notably (and controversially), the ETS requires covered employers to develop and implement a COVID-19 policy that either (i) requires all non-exempt employees to be vaccinated or (ii) requires all non-exempt unvaccinated employees to wear masks and produce a negative COVID-19 test result on a weekly basis.4 If an employer adopts the testing requirement, it is not obligated under the ETS to pay for any costs of masks or costs associated with testing.5 But, regardless of which policy an employer adopts, it must provide a reasonable amount of time to each employee to get vaccinated, four hours of paid time to do so, and a reasonable amount of time and paid sick leave to recover from any side effects resulting from the vaccine.6 The ETS unequivocally states that these requirements and the others stated therein “preempt inconsistent state and local requirements.”7 Employers who fail to comply with the ETS may be fined up to $13,636 for each violation and up to $136,532 for each willful violation.8
II. Fifth Circuit Stays the ETS
The ETS originally stipulated that the “vaccine-or-test” requirement would go into effect on January 4, 2022.9 Nearly immediately after the ETS was issued, however, litigants filed challenges to the ETS in almost every circuit court of appeals.10 On November 6, 2021, one day after the ETS was issued, the Fifth Circuit Court of Appeals stayed the ETS pending judicial review.11 The Fifth Circuit affirmed its decision to stay the ETS in a November 12, 2021 opinion.12
III. Sixth Circuit Selected to Hear Consolidated Challenges to the ETS
Because nearly identical petitions challenging the ETS had been filed across multiple circuits, all of the petitions—including the Fifth Circuit petition—were then consolidated before the Sixth Circuit Court of Appeals.13 The Sixth Circuit thus was tasked with reviewing both the ETS and the Fifth Circuit’s stay of the ETS.14 On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay, thereby reinstating the ETS.
a. OSHA’s Statutory Authority
As an initial matter, the Sixth Circuit addressed the petitioners’ argument (largely dependent on the Fifth Circuit’s opinion) that OSHA exceeded its statutory authority. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), OSHA may only promulgate an ETS for “substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). The court found, taking a holistic view of the OSH Act’s language and structure, including references to immunization, and Congressional authorization following the enactment of the OSH Act, that “[a]n agent that causes bodily harm—a virus—falls squarely within the scope of [the OSH Act].” Relatedly, the court determined that the “major questions” doctrine, which prevents an agency from expanding its regulatory authority in the absence of clear congressional authorization, was inapplicable because OSHA’s authority to address a “novel and dangerous worldwide pandemic” was firmly grounded in statutory support and precedent.
Finding that OSHA did not exceed the bounds of its authority, the court next turned to the petitioners’ substantive challenges to the ETS itself. These included arguments that COVID-19 is not an emergency, poses no grave danger, and that the ETS was thus not necessary to protect employees. First, the court dispensed with the Fifth Circuit’s argument that by not issuing the ETS at the outset of the pandemic, OSHA’s assertion of an emergency rang hollow. Relying on OSHA’s explanations for the purported delay, the court noted that OSHA had addressed COVID-19 in “progressive steps tailored to the stage of the pandemic,” including the growing and changing nature of the virus and the availability of effective tools to combat the spread of the virus. Indeed, the court recognized that new variants of the virus—including the Omicron variant—support OSHA’s claim of an emergency necessitating agency action.
c. Grave Danger
The court then analyzed whether COVID-19 posed a “grave danger.” Before OSHA may issue an ETS, it must determine: (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1).The Sixth Circuit showed deference to OSHA’s determination that COVID-19 poses a grave danger. Moreover, the court flatly rejected as “wrong” the Fifth Circuit’s finding that OSHA must at least first make findings of the presence of COVID-19 in all covered workplaces. In doing so, the court reasoned that “[i]f [the Fifth Circuit’s interpretation] were true, no hazard could ever rise to the level of ‘grave danger’ because a risk cannot exist equally in every workplace and so the entire provision would be meaningless.”
The court also found that OSHA had made the requisite showing of necessity. To prove necessity, the ETS must be essential and economically feasible. Petitioners (and the Fifth Circuit) argued that the ETS was overinclusive because it did not account for differences among industries and workplaces. Conversely, they also asserted that it was underinclusive, because it applies only to employers with 100 or more employees. The Sixth Circuit found these contentions contradictory and unpersuasive. First, the court noted that OSHA, when issuing an ETS, may err on the side of overprotection. Second, the court found that petitioners’ underinclusiveness argument suggested that OSHA needed more workplace safeguards, not fewer. The court also found that compliance with the ETS was economically feasible. That determination relied on OSHA’s economic analysis, which predicts that costs of compliance will amount to approximately 0.02% of the revenue of the average covered employer or about $11,298 per affected entity. The court did note, however, that in accordance with the ETS, an employer may raise infeasibility or impossibility as a defense, and/or seek a variance from the ETS.
e. Constitutional Challenges
Finally, the court addressed the various constitutional arguments raised. It rejected petitioners’ argument that the ETS violated the Commerce Clause. The court held that, contrary to the Fifth Circuit’s conclusion that the ETS impermissibly regulated noneconomic activity—a power reserved to the States—by regulating a person’s choice to remain unvaccinated, the ETS appropriately pertained to economic activity, in that it regulates employers engaged in such activity. Likewise, the court found petitioners’ argument that they would be irreparably harmed from the stay meritless, because the alleged harms and costs were speculative, while the costs of delaying the ETS had been amply proven by COVID-related developments to date.
IV. Supreme Court to Review the ETS and OSHA’s New Compliance Deadlines in the Interim
Nearly immediately after the Sixth Circuit dissolved the stay issued by the Fifth Circuit, the petitioners sought review by the U.S. Supreme Court. In a rare move, the Court fast-tracked the case and will hear oral arguments on January 7, 2022. In the meantime, however, employers should begin taking preparatory steps to comply with the ETS. OSHA has stated that it “will not issue citations for noncompliance 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.”
We will continue to monitor developments in order to apprise clients of their responsibilities.
1 COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. 1910, 1915, 1917, 1918, 1926, and 1928).
2 Id. at 61,403.
3 Id. at 61,419.
4 Id. at 61,438.
5 Id. at 61,408.
6 Id. at 61,437.
8 29 C.F.R. § 1903.15(d).
9 86 Fed. Reg. 61,554.
10 See, e.g., BST Holdings, LLC v. Occupational Safety & Health Admin., No. 21-60845 (5th Cir. Nov. 5, 2021); Florida v. Occupational Safety & Health Admin., No. 21-4097 (11th Cir. Nov. 5, 2021); Missouri v. Biden, No. 21-3494 (8th Cir. Nov. 5, 2021).
11 BST Holdings, LLC v. Occupational Safety & Health Admin., No. 21-60845, 2021 WL 5166656 (5th Cir. Nov. 6, 2021) (per curiam).
12 BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th 604 (5th Cir. 2021).
13 In re MCP No. 165, No. 21-7000 (6th Cir. Nov. 16, 2021).
14 In re MCP No. 165, No. 21-7000, 2021 WL 5989537 (6th Cir. Dec. 17, 2021).