Readers will recall that we recently wrote about President Biden’s vaccine mandate which took shape in the form of an Emergency Temporary Standard (ETS) promulgated by the Occupational Safety and Health Administration (OSHA). Although enforcement of the ETS was halted by the federal Fifth Circuit Court of Appeals, the federal Sixth Circuit Court of Appeals recently revived the ETS, allowing it to go into effect. In response to the Sixth Circuit’s ruling, OSHA has delayed the deadlines for compliance.
Background
On Nov. 4, 2021, following direction by the Biden Administration, OSHA issued an ETS requiring employers with 100 or more employees to implement a mandatory vaccination policy for their employees or have unvaccinated employees submit to weekly COVID-19 testing and wear a mask at work. On Nov. 5, 2012, one day after OSHA issued its ETS, the ETS was published in the Federal Register, making the ETS effective and starting the clock on the compliance deadlines. Upon publication, the ETS was immediately challenged in federal courts by various employers, business interest groups, and States. One day later, the federal Fifth Circuit Court of Appeals stayed enforcement of the ETS citing “grave statutory and constitutional issues.”
Following multiple challenges in various federal courts across the entire country, the challenges were consolidated through a procedural move into the federal Sixth Circuit Court of Appeals. The consolidation put all of the challenges to the ETS into one challenge before the Sixth Circuit. On Dec. 17, 2021, the Sixth Circuit dissolved the stay by the Fifth Circuit and allowed the ETS to go into effect.
Federal Sixth Circuit Court of Appeals revives mandate
As a three-judge panel, the Sixth Circuit held that OSHA had “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces,” that regulating an “agent that causes bodily harm”—including a virus—falls squarely within OSHA’s rulemaking authority, and noting that “Congress expressly included funding for OSHA in the American Rescue Plan that is to be used ‘to carry out COVID-19 related worker protection activities.’” Accordingly, the Sixth Circuit dissolved the stay and allowed the ETS to go into effect.
In dissent, Judge Larsen concluded that OSHA could not offer a sufficient showing that COVID-19 posed a “grave danger” to the American workplace, and that because “Congress has clearly marked the perimeter of OSHA’s authority: the workplace walls,” OSHA had exceeded the scope of its authority. As such, the dissent would have maintained the stay. This position largely matches the previous ruling by the Fifth Circuit.
The decision was immediately appealed to the Supreme Court, asking the court to once again halt enforcement of the ETS. The Supreme Court has given the government until December 30, 2022, to respond to the appeal. Therefore, it is not expected that the Supreme Court will make a ruling until after that time.
OSHA delays enforcement
Following the Sixth Circuit’s decision, OSHA released a statement delaying the original enforcement dates of the mandate. OSHA stated that it “will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
As a reminder, compliance with the ETS includes determining the vaccination status of all covered employees, adopting written vaccination policies that comply with the ETS, and requiring all employees who are not fully vaccinated to wear masks at the workplace. The testing requirements provide that all employees must be vaccinated and/or all employees who are not fully vaccinated are required to be tested weekly. Employers who fail to comply with the ETS may be subject to OSHA penalties, including up to $13,653 per violation for serious violations and heightened penalties for willful or repeated violations of up to $136,532 per violation.
Takeaway
Currently, whether this mandate will survive court scrutiny is still uncertain. As previously predicted, the Supreme Court will have the final say in this matter. For now, the ETS is once again effective, with compliance deadlines coming shortly after the start of the new year. As a precaution, employers should analyze their structure and workforce to determine if the ETS would apply to them. If so, employers should familiarize themselves with the requirements of the ETS. In doing so, employers should put compliance plans in place pending the Supreme Court’s ruling on the matter. At this time, employers should be preparing to comply with the ETS as if it will go into effect on January 10, 2022.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.