On December 17, 2021, a divided panel of the US Court of Appeals for the Sixth Circuit granted the federal government’s emergency motion to dissolve the US Court of Appeals for the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard. With the Sixth Circuit’s ruling, the standard is effective again for the first time since the day after it was published, although for how long remains to be seen.
Several of the Emergency Temporary Standard (ETS) challengers have already sought emergency relief from the US Supreme Court, and the Court could issue its own ruling reinstating the stay (or upholding the Sixth Circuit’s decision to dissolve it) within the next few weeks. Meanwhile, the Occupational Safety and Health Administration (OSHA) has announced that it will not enforce the ETS until January 10 (previously December 6) for all requirements except regular testing and February 9 (previously January 4) for weekly testing of unvaccinated employees, so long as employers are making a good faith effort toward compliance in the interim.
Despite the ongoing uncertainty, the bottom line is that the ETS is currently in effect and OSHA has announced its intent to enforce the requirements beginning on January 10. Therefore, covered employers should begin (or restart) efforts to come into compliance as soon as possible (see the Morgan Lewis LawFlash summarizing the ETS for additional details).
In determining whether the Fifth Circuit’s stay of the ETS should be lifted, the Sixth Circuit focused its analysis on the government’s likelihood of “success on the merits” in defending the validity of the ETS. In other words, the Sixth Circuit explored whether OSHA had issued a valid regulation under the Occupational Safety and Health Act of 1970 (OSH Act) and, more broadly, the US Constitution. The Sixth Circuit also found that the balance of hardships favored dissolving the stay.
Validity Under the OSH Act
To issue an emergency rule under the OSH Act, OSHA must demonstrate that employees are exposed to “grave danger” and that an “emergency” standard is “necessary to protect employees from such danger.”
First, the Sixth Circuit upheld OSHA’s conclusion that the “current situation is an emergency,” rejecting the argument that if this were a true emergency OSHA would have issued the standard at the outset of the pandemic, instead finding that OSHA “can and must be able to respond to dangers as they evolve.”
Second, the Sixth Circuit upheld OSHA’s conclusion that COVID-19 presents a “grave danger” to workers that could be addressed by the ETS, crediting OSHA’s estimates that the standard would “save over 6,500 worker lives and prevent over 250,000 hospitalizations.”
Third, the Sixth Circuit upheld OSHA’s conclusion that the ETS is “necessary,” finding that it was “essential to reducing the grave danger” and rejecting the argument that the ETS must entirely remove the grave danger from the workplace to be necessary. Ultimately, the Sixth Circuit concluded that “[b]ased on the substantial evidence referenced and relied upon by OSHA, there is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.”
Validity Under the US Constitution
The Sixth Circuit similarly determined that the various constitutional challenges to the ETS were unlikely to prevail. For example, the Sixth Circuit concluded that the Commerce Clause challenge did not have a meaningful likelihood of success because it viewed the ETS as regulating employers’ economic activities as opposed to individuals’ personal healthcare decisions.
Balance of Hardships
Finally, the Sixth Circuit concluded that any injury to the challengers from the lifting the stay was outweighed by the injuries that maintaining the stay would cause to governmental and public interests. It criticized the Fifth Circuit for failing to analyze the harms from OSHA’s perspective, finding that petitioners’ claimed harm was entirely speculative while the harm to occupational health and safety was comparatively high.
The morning after the Sixth Circuit issued its ruling, OSHA provided some clarity and published an update on its ETS website to “account for any uncertainty created by the stay.”
Specifically, OSHA announced that so long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS, OSHA will not issue any citations for noncompliance prior to January 10, 2022 (previously December 6, 2021). Additionally, and subject to the same good faith condition, OSHA stated that it will not issue any citations for noncompliance with the testing requirements of the ETS prior to February 9, 2022 (previously January 4, 2022).
Following the Sixth Circuit’s ruling, some challengers have already asked the Supreme Court to reinstate a stay of the ETS pending appeal and/or take over the whole appeal now, effectively removing the consolidated challenges from the Sixth Circuit and allowing the Supreme Court to definitively resolve the question of the ETS’s legality.
This process will play out on the Supreme Court’s so-called “shadow” or “emergency” docket. Supreme Court Justice Brett Kavanaugh, responsible for emergency applications from the Sixth Circuit, has directed the federal government to respond to the challenges by December 30. Once the briefing is complete, the Supreme Court could move very quickly to decide these issues based entirely on the papers, or it could decide to order full briefing and oral argument on the legality of the ETS on a highly expedited timetable (e.g., within a matter of weeks). However, there is no guarantee that the Supreme Court will intervene at this stage; it could decide to let the Sixth Circuit panel’s decision stand.
To add another wrinkle for some employers, there are also pending legal challenges for the federal government’s two other vaccine rules for certain private employers: the federal contractor Executive Order and the Centers for Medicare and Medicaid Services (CMS) Healthcare Staff Vaccination Rule, both of which mandate vaccination with no test-out option.
Indeed, the same day the Sixth Circuit dissolved the ETS stay, the Eleventh Circuit denied the federal government’s motion to dissolve a similar nationwide preliminary injunction issued against the federal contractor mandate. The federal government is likely to appeal that decision to the Supreme Court in the coming days. Additionally, on December 15, 2021, the Fifth Circuit partially affirmed an injunction of the CMS rule—vacating the nationwide injunction but leaving the injunction in place for the 14 states that had brought challenges. In the Eighth Circuit, the CMS rule is enjoined in another 10 states, along with a stay for Texas from the US District Court for the Northern District of Texas, which means that the rule is currently unenforceable in half the country. The federal government has already asked the Supreme Court to reinstate the CMS rule, and the Court has ordered the challengers in those cases to respond by December 30 as well.
With the confluence of all three mandates landing on the Supreme Court’s docket at the same time, and given the importance and urgency of the issues for all parties involved, the Supreme Court may very well act swiftly to resolve all of these matters in the next several weeks.
While uncertainty remains with respect to how the Supreme Court will rule and how quickly it will do so, prudent employers will take steps to comply with the ETS before OSHA’s newly announced deadlines. Critically, OSHA’s delay of the compliance deadlines is predicated on an employer exercising reasonable, good faith efforts to come into compliance with the ETS. Thus, to mitigate OSHA enforcement risk, employers who cannot achieve full compliance by the new deadlines will need to show that they were taking meaningful steps to implement the requirements of the ETS shortly after the Sixth Circuit dissolved the stay.
Employers also should pay close attention to the requirements of state and local law that may conflict with federal requirements. While there is an argument that the ETS preempts these state laws, that is only true if the ETS remains in effect (i.e., if the Supreme Court does not reimpose a stay). Moreover, employers with federal contracts or that are subject to the CMS rule will need to assess the interaction between the ETS, state/local law, and the federal contractor and CMS mandates (recognizing that whether a federal rule is effective or not in a particular jurisdiction impacts the risk assessment). Given the complex relationship between the three federal rules—ETS, federal contractors, and CMS—and many state and local laws, employers should consult with counsel to determine the best path forward.
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Daniel A. Kadish
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Daryl S. Landy
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Brandon J. Brigham
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