On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) on COVID-1 vaccination and testing for employers with at least 100 employees in a consolidated multidistrict litigation. See In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).
In holding that the respondents opposing the ETS were unlikely to succeed on the merits of their claims, the Court held that the “ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done.”
The Court held that § 655(c)(1) of the Occupational Health and Safety Act requires OSHA to issue emergency standards necessary to protect workers from “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). Taking a “holistic view of the language,” the Court concluded that COVID-19 constitutes a harmful toxic agent in the workplace. The Court reiterated analogous examples and concluded that the “Act’s language, structure, and Congressional approval, OSHA has long asserted its authority to protect workers against infectious diseases.” Moreover, the “responsibility the Act imposes on OSHA to protect the safety and health of employees … is hardly limited to ‘hard hats and safety goggles.’” The Court deemed that OSHA has wide discretion to implement the best possible solution to ensure the health and safety of all workers.
The Court also concluded that the government provided adequate reasons for its delay in issuing the ETS. The Court noted that adequate scientific evidence about the disease and “ways to mitigate it were undeveloped at the beginning of the pandemic.” OSHA originally focused on nonregulatory options and guidance based on available information that it contended was inadequate. The Court also relied fairly heavily on the introduction of the Delta variant as a reason for OSHA’s delay: “the emergence of the Delta variant significantly increased transmission when reported cases had been dwindling for months.”
Regarding the challenges to requiring employers with 100 employees or more to comply, the Court agreed with OSHA that this “tailored threshold” was appropriate because those employers are positioned to effectuate the standard and their employees are more at risk. Thus, the Court rejected the Constitutional challenges to the ETS including the Commerce Clause challenge.
Finally, the Court rejected the Fifth Circuit’s reasoning regarding irreparable harm and the balance of harms finding that “[t]o the extent that a business with over 100 employees impacted at this stage of the ETS faces true impossibility of implementation, it can assert that as an affirmative defense in response to a citation. 29 C.F.R. § 2200.34(b)(3).” Moreover, employers may also choose to comply with the standard “by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries.” In the face of curtailing a “deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” the Court found the balance of harms weighed in favor of reinstituting the mandates.
Circuit Judge Joan Larsen dissented on virtually every point, reiterating that the United States Supreme Court recently held that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” This dissent also reasoned that the majority opinion “describes the emergency rule at issue here as permitting employers‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.’ With respect, that was the state of federal law before the rule, not after.”
The foregoing summary is not intended to represent a comprehensive analysis of the Court’s opinion or legal advice to anyone regarding the OSHA mandates. Organizations are strongly encouraged to obtain independent legal advice regarding their rights and responsibilities.
