On November 12, 2021, the Fifth Circuit Court of Appeals issued an emergency stay prohibiting implementation of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 emergency temporary standard (“ETS”) mandating COVID-19 vaccinations or weekly testing for private employers with 100 or more employees. The fate of the ETS and the Fifth Circuit’s emergency stay of the ETS was before the Sixth Circuit Court of Appeals. Since then, there have been multiple developments on the ETS, including the U.S. Supreme Court’s issuance of a stay on the implementation of the ETS and OSHA’s subsequent withdrawal of the ETS. Consequently, employers under OSHA’s jurisdiction throughout the country are not required to comply with the ETS requirements.

1. The Sixth Circuit Dissolved The Fifth Circuit’s Stay

On December 17, 2021, the United States Court of Appeals for the Sixth Circuit dissolved the stay issued by the Fifth Circuit. In a 2-1 opinion, the three-judge panel held the ETS was within OSHA’s existing authority and power to regulate viruses and promulgate standards for the health and safety of employees in the workplace in response to “a novel and dangerous worldwide pandemic.” Immediately following the Sixth Circuit’s decision, numerous petitioners, including states attorney generals, businesses, and non-governmental organizations, sought review of the Sixth Circuit’s decision by the U.S. Supreme Court. The Supreme Court agreed to hear the petitioners’ request for emergency relief and scheduled a relatively unprecedented hearing for January 7, 2022.

2. OSHA’s Announcement On Enforcement Of The ETS

Originally, the majority of requirements under the ETS were set to become effective on December 5, 2021, while the mandatory weekly testing policy for unvaccinated employees was set to begin on January 4, 2022. Following the Sixth Circuit’s decision, OSHA announced that the original deadlines under the ETS remained in effect. However, OSHA also announced that due to uncertainty created by the Fifth Circuit’s stay, the agency would “exercise enforcement discretion” to allow employers time to comply with the ETS. OSHA stated it would not issue citations for noncompliance with any of the non-testing requirements of the ETS before January 10, 2022, and would not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer was exercising reasonable, good faith efforts to come into compliance with the ETS. California and the 21 other states with an OSHA-approved State Plan opted to wait until the Supreme Court’s decision before announcing their own adoption and enforcement of the ETS. Thus, in the remaining states where the ETS was effective, many employers were forced to scramble to prepare to comply with the January 10 enforcement deadline while awaiting the Supreme Court’s hearing on January 7 and subsequent ruling.

3. The Supreme Court’s Decision Staying The ETS

On January 13, 2022, the Supreme Court granted the request for a stay of OSHA’s ability to implement and enforce the ETS. The 6-3 majority opinion based its decision on the following arguments:

• A valid ETS under the Occupational Safety and Health Act of 1970 (“OSH Act”) requires (1) a grave danger to employees from an agent that is a toxic substance, physically harmful, or a new hazard, and (2) that the emergency regulation is “necessary.” Although COVID-19 has the potential to affect all employees, the Court noted that is not an “occupational hazard” or “grave danger” that inherently stems from the workplace.

• The Court concluded that although OSHA can regulate a “workplace safety standard,” the ETS reaches into the territory of broad public health measures, which is beyond OSHA’s jurisdiction. The Court explained that COVID-19 is a universal risk capable of spreading anywhere people congregate and likened its risk to that of “day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Consequently, the ETS would be a “significant encroachment into the lives—and health—of a vast number of employees.”

• Allowing OSHA to regulate so expansively because COVID-19 happens to affect the workplace would allow an unjust expansion of OSHA’s authority. Unlike other universal dangers that OSHA can regulate, such as fire or sanitation, a vaccine mandate would escape the confines of the workplace as employees cannot choose to become unvaccinated for the purposes of heading home after work.

• The Court recognized that OSHA does have the power to regulate specific occupational risks associated with COVID-19. For example, OSHA would have authority when a particular function of a job would place employees in a special danger (e.g., researchers who work with the COVID–19 virus, or broader regulations regarding particularly crowded or cramped environments). However, the ETS’ application to all industries in such a broad swath exceeded the specificity required to distinguish between a general public health measure and an “occupational safety or health standard.”

• Finally, the Court noted OSHA lacked any historical precedent for such a broad ETS. Of the nine previous ETS issued by OSHA, none have been as broad, six were challenged, and only one was fully upheld.

4. OSHA’s Withdrawal Of The ETS

The Supreme Court’s decision only addressed a stay of the immediate implementation and enforcement of the ETS. A ruling on the merits on whether the ETS could ultimately stand had yet to be briefed and decided by the Sixth Circuit. However, the Supreme Court’s decision made OSHA’s position at the Sixth Circuit an uphill battle because in granting the stay, the Court instructed that the “[a]pplicants are likely to succeed on the merits of their claim that the Secretary [of Labor] lacked authority to impose the mandate.” Additionally, a federal ETS may only exist for six months and must be replaced by a permanent standard to remain in effect thereafter.

In light of the above, OSHA announced its withdrawal of the ETS on January 25, 2022, effective the following day. OSHA’s announcement stated that while the agency was withdrawing the ETS as an enforceable temporary standard, the agency was not withdrawing the ETS as a proposed rule. The distinction between the two positions is that a proposed rule still allows OSHA to issue a subsequent permanent standard, which OSHA announced will be a permanent “COVID-19 Healthcare Standard.” OSHA’s initial Healthcare ETS, which required various protocols for employees in certain healthcare settings but did not contain a vaccine or testing requirement, expired in December 2021 without a related permanent standard. The new COVID-19 Healthcare Standard will likely feature some form of the ETS’ vaccine and testing requirement and will be issued at some point over the next few months.

5. The Next Steps For Employers

For employers who are not in the healthcare industry, it appears that the federal government has given up on instituting a nationwide vaccine or testing requirement via OSHA. For employers in healthcare settings, the vaccine or testing requirement will likely become effective by this summer. The permanent standard will be more difficult than the ETS to challenge in the courts. A permanent standard lowers the threshold for the standard from “necessary” to “reasonably necessary or appropriate.” Moreover, multiple Supreme Court Justices intimated during the ETS oral argument that a more focused standard that was industry-specific may be permissible. Employers in the healthcare industry should continue to monitor future announcements from OSHA, especially employers who have not instituted their own mandatory vaccination policy already.

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