A divided three-judge panel of the U.S. Court of Appeals for the 6th Circuit dissolved the 5th Circuit Court of Appeal’s stay of OSHA’s Emergency Temporary Standard (“ETS”) with respect to COVID-19 on Dec. 17, effectively reinstating the ETS stayed by the 5th Circuit. Previously, following a legal challenge resulting in a stay issued by the 5th Circuit, employers with 100 or more employees were not obligated to mandate COVID-19 vaccinations for their employees. Based on the 6th Circuit’s December 17 order, the vaccine mandate with a test option will proceed. Employers need to prepare to implement the ETS.
The ETS, published in the Federal Register on November 5, 2021, requires employers of 100 or more employees to mandate vaccinations or, alternatively, both to establish programs requiring employees to undergo weekly COVID-19 testing and to wear face coverings in the workplace.[1] While most of the ETS’s requirements had an effective date of December 6, 2021, employers opting to forego a vaccine mandate in favor of a testing protocol must comply with the ETS by January 4, 2022. Employers are advised to consult the complete text of the ETS for a comprehensive listing of its requirements and exceptions.
In an opinion authored by Judge Stranch, the 6th Circuit engaged in a thorough discussion of OSHA’s well-settled authority to regulate the workplace by addressing widespread public health crises. After establishing that the SARS-CoV-2 virus constituted a “physically harmful agent” within OSHA’s regulatory purview, the court went on to note that the COVID-19 pandemic and its associated harms fall squarely within the statutory definitions of “emergency” and “grave consequences” such that regulation was appropriate. Further, the court noted that OSHA provided ample support for its position by publishing a lengthy preamble as a companion to the ETS itself.[2] The preamble includes compelling data with respect to the transmissibility of the virus in enclosed workplaces as well as the effectiveness of vaccines.
In reaching its decision, the court rejected Constitutional challenges to the ETS rooted in the Commerce Clause and the non-delegation doctrine. Finding the ETS constitutionally sound, the court reasoned that the risk of irreparable injury potentially resulting from a failure to enact these regulations outweighed the burdens that employers will face in complying with the mandate.
Employers should be aware that this decision does not affect the pending stay of Executive Order 14042 covering federal contractors. For federal contractors, the vaccine mandate of Executive Order 14042 was stayed nationwide by a Federal District Court for the District of Georgia on December 7, 2021.[3]
As covered employers work to comply with the ETS, it is imperative to understand that either course of action – requiring vaccines or implementing a testing protocol – will require meaningful efforts to collect and maintain sensitive employee data and will likely present personnel challenges.
