OSHA ETS Vaccine Mandate Reinstated by 6th Circuit Court of Appeals

(December 19, 2021)

In a 2-1 panel decision issued on Friday, December 17, the Sixth Circuit Court of Appeals has in effect reinstated OSHA’s previously-stayed Emergency Temporary Standard (ETS), applicable to large employers (with 100 or more employees). In its opinion, the court granted the Biden administration’s motion to dissolve the stay which had been previously put in place by the Fifth Circuit Court of Appeals.

In its opinion, the court broadly dismissed many of the arguments presented to challenge the ETS, such as by noting that “it is not appropriate to second-guess” OSHA’s determination that a “grave danger” still exists with respect to COVID. Judge Jane B. Stranch wrote in her majority opinion, “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” She added, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And 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.”

Within hours of the Sixth Circuit’s decision, the State petitioners in the case filed an Emergency Application to the U.S. Supreme Court for immediate stay of agency action pending disposition of the petition for review.

It is certainly possible, but not guaranteed, that the Supreme Court will accept the appeal and decide the issue.

The ETS covers employers with 100 or more employees and was subject to numerous lawsuits which were consolidated for determination by the Sixth Circuit Court of Appeals. The ETS mandate requires covered employers to either require its workforce to be “fully vaccinated” or to require unvaccinated employees to wear face coverings and undergo weekly testing. Employers must also confirm employees’ vaccination status and keep records of that status, with potential penalties of up to $13,653 for each violation and up to $136,532 for willful violation.

In response to the Sixth Circuit decision, OSHA has announced it is “gratified” that the Sixth Circuit has dissolved the stay of the ETS and that OSHA “can once again implement this vital workplace health standard,” however,

“[T]o 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.”

At this time, it appears prudent for covered employers to work with their employment counsel to continue developing policies and strategies to demonstrate a good faith effort to come into compliance with the ETS.

To make matters more complicated, employers in some States are now subject to State laws that appear to run counter to the OSHA ETS. For example, Tennessee’s recently-enacted Title 14 prohibits private employers from requiring proof from employees of COVID-19 vaccination or taking adverse employment action based on an employee/applicant refusing to provide proof of vaccination. Title 14 allows employees/applicants to object to vaccination for any reason, including political or moral objections as well as objections based on religious and/or medical reasons. If the OSHA ETS remains in effect, arguments can be made that it preempts any State laws, such as Tennessee’s, that provide to the contrary.

There are regular developments in this area, and we will do our best to keep you abreast of them. But even with new court decisions and agency statements, there are still unknowns which will only become known with the passage of time.