The White House’s plan to vaccinate American workers against COVID-19 is in trouble.  In September, President Joe Biden announced that the Office of Health and Human Services (“OSHA”) would pass an Emergency Temporary Standard, requiring all employers of one hundred or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and require any workers who remain unvaccinated to “undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination.”  86 Fed. Reg. 61,402.  The mandate obligates employers to take account of each of its employee’s vaccination status by December 6, 2021, and to maintain these vaccination records.  All covered employees must either be fully vaccinated or start weekly testing by Jan. 4, 2022.  Exempted from the ETS are employees who work remotely one hundred percent of the time and those who work exclusively outside or at a worksite where no other individuals are present.  The law would give covered employees until January 4, 2022 to comply.

Compliance with this considerable mandate is no small task.  Employers are expected to provide up to four hours of paid time to employees who elect to obtain the vaccine during the workday, and further complicating matters, the mandate is silent as to whether the time it takes to test is compensable.  86 Fed. Reg. 61, 525.  The mandate forces employers to deal with the logistics of ensuring their workforce is vaccinated, monitor and enforce testing and masking, as well as address the cascade of human resource issues arising from inevitable employee non-compliance.  The nationwide labor shortage only exacerbates the fallout from this action, as employers are already struggling to entice employees to join their ranks, vaccinated or otherwise.

Congress delegated to OSHA, an agency of the Department of Labor, the authority to ensure workplace safety nationwide.  One of its powers is the authority to issue ETSs to address “grave danger” to American workers where the traditional administrative rulemaking process, requiring public notice and a comment period, would be overly cumbersome.  An ETS is explicitly temporary in nature, and serves as a placeholder until the necessary formal rulemaking can occur.  OSHA has issued only ten other ETSs in its fifty-year history, five of which were defeated in court. [1].

The vaccination mandate was challenged immediately in courts across the country.  On November 6, 2021, the US Court of Appeals for the Fifth Circuit granted a motion to stay enforcement of the ETS relative to one such challenge in a terse per curiam order, and on November 12, 2021 again reaffirmed and extended the stay in a longer decision.  The latter decision examined the factors necessary for a stay [2] and relied, inter alia on the commerce clause and the nondelegation doctrine to support its determination, essentially articulating a concern with federal agency overreach.

OSHA complied with the order and shortly thereafter announced that it was suspending activities related to the mandate’s implementation.  Nearly simultaneously, on November 16, 2021 the Sixth Circuit won the lottery to rule on the ETS. [3]  Commentators have suggested that the jurisdiction is likely a favorable environment for the challenge.  However, the games of chance do not stop at the circuit lottery, and the case will ultimately be heard by a panel of three judges randomly chosen from the judges of the Sixth Circuit.  Of course, the appellate ruling may very well be reviewed by the United States Supreme Court, where yet another panel of judges will have an opportunity to have the final word.

While the mandate is in jeopardy, it is by no means down for the count.  Likewise, state governments across the country are enacting their own mandates in various forms, and the authority of states to enact such laws is not constrained by the same constitutional concerns of federal overreach that beleaguer OSHA’s ETS.  For example, in Rhode Island, a federal district court declared that a state-issued mandate for healthcare workers was a valid exercise of state police powers, though new challenges to the law are brewing.  Concerned employers should not assume that the ETS will necessarily be defeated, or that other and new vaccination mandates will uniformly fail.  Accordingly, employers would be prudent to adopt a proactive approach to compliance.

[1] 36 Federal Register 23207 (December 7, 1971)(addressing asbestos, not challenged);  38 Federal Register 10715 (May 1, 1973) (addressing organophosphorous pesticides, vacated by Florida Peach Growers Ass’n v. United States Department of Labor,489 F.2d 120 (5th Cir. 1974); 38 Federal Register 10929 (May 3, 1973) (addressing fourteen carcinogens, upheld with respect to twelve by Dry Color Mfrs. Ass’n v. Department of Labor, 486 F.2d 98 (3d Cir. 1973)); 39 Federal Register 12342 (April 5, 1974)(addressing vinyl chloride, not challenged); 41 Federal Register 24271 (June 15, 1976) (addressing diving operations, stayed by Taylor Diving & Salvage Co. v. Department of Labor, 537 F.2d 819 (5th Cir. 1976)); 42 Federal Register 22515 (May 3, 1977) (addressing benzene, stayed by Industrial Union Dep’t v. Bingham, 570 F.2d 965 (D.C. Cir. 1977); 42 Federal Register 45535 (September 9, 1977) (addressing 1,2 Dibromo-3-chloropropane, not challenged); 43 Federal Register 2585 (January 17, 1978) (addressing vinyl cyanide, stay denied by Vistron v. OSHA, 6 OSHC 1483 (6th Cir. 1978); 48 Federal Register 51086 (November 4, 1983) (addressing asbestos, stayed by Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984)); and 86 Federal Register 32376 (June 21, 2021) (addressing COVID-19 for health care employers, review pending in United Food and Commercial Workers and American Federation of Labor and Congress of Industrial Organizations v. OSHA, et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021).

[2] Whether the applicant has made a showing of likelihood of success on the merits, whether the applicant would be irreparably harmed by a stay, whether a stay will substantially injure other parties interested in the matter, and where the public interest lies.  Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

[3] The process is a procedural quirk of the federal appellate court system where similar actions from multiple jurisdictions are consolidated into a single action to be decided before a court chosen by lottery from among the jurisdictions with pending challenges.