The legal seesaw over the Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard tipped back toward enforcement of the vaccinate-or-test requirement for companies with more than 100 employers.
On December 17, the Sixth Circuit Court of Appeals dissolved a stay (an injunction issued by the 5th Circuit in November) of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
Shortly after, OSHA posted a statement with new compliance dates on its website:
“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to test in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.
State attorneys general who oppose the ETS immediately filed emergency applications for an immediate stay with the Supreme Court.
Don’t wait for final buzzer
In coverage on its website, the Society for Human Resource Management reports Emergency appeals are reviewed by the Supreme Court justice who is assigned to that circuit. Justice Brett Kavanaugh is assigned to the 6th Circuit, and he may stay the ETS pending review of the entire Court. Or, given OSHA’s decision to delay compliance dates, he could refer the applications to the full Court for a decision. Justice Kavanaugh could also take no action on the applications pending review of the full Court.
The National Law Review suggests that, “The Supreme Court will presumably be mindful of the resources necessary for employers to implement the ETS and will try to avoid a scenario in which employers would take steps to implement the ETS only to have it invalidated later. Although it is always difficult to predict how quickly a ruling might come, the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty.”
The Society for Human Resource Management says employment law attorneys warn businesses against waiting for the outcome of legal challenges to the ETS.
"There's just not enough time to get ready for the ETS if you don't start now," said Julie Vanneman, an attorney with Dentons in Pittsburgh.
Kristin White, an attorney with Fisher Phillips in Denver, recommended employers provide notices and start gathering employees’ vaccination status now. "Then, they can hold off finalizing the plan and testing for a couple of weeks while they gather vaccine information and the litigation moves forward."
The ETS allows the 22 states with OSHA-approved state plans to develop their own workplace health and safety plans, as long as those plans are "at least as effective" as the federal program. Law firm Jackson Lewis noted that none of those 22 locations that cover private employers have taken steps to enact an ETS, but they have a limited window to do so if the Supreme Court does not block the rule.
Why the stay was overruled
A three-judge panel of the Sixth Circuit considered OSHA’s motion to overturn the injunction, and each judge on the panel wrote a separate opinion. The National Law Review reports that Judge Jane Stranch authored the majority opinion in the 2–1 decision, which held that OSHA did not exceed its statutory authority in issuing the ETS because the Occupational Safety and Health (OSH) Act “requires OSHA to issue an emergency standard if necessary to protect workers from a ‘grave danger’ presented by ‘exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” The majority concluded that regulating an “agent that causes bodily harm” – including a virus – is squarely within OSHA’s authority.
The majority noted that OSHA has regulated infectious diseases, including protecting employees from exposure to HIV, hepatitis B, and hepatitis C through the Bloodborne Pathogens Standard, and that clear authority to regulate viruses includes regulating infectious diseases that are not unique to the workplace. Courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace.
With regard to COVID-19, the majority wrote, “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.’”