Late on Friday, Dec. 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay which was previously issued by the Fifth Circuit that blocked the implementation of the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination Emergency Temporary Standard (ETS). The ETS mandated COVID-19 vaccination or weekly testing for employers with 100 or more employees. We previously wrote about the requirements of the ETS and about the previous stay blocking its implementation.

The Sixth Circuit’s Majority Opinion

In its decision, a 2-1 majority of the court held that “there is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS,” and this, among other factors, rendered a stay pending judicial review inappropriate. Because of this, the Sixth Circuit lifted the stay which was issued in November.

This is a major development in the ongoing challenge to OSHA’s authority to issue this wide-reaching workplace safety requirement. In coming to its decision, the majority noted: 1) that Congress had granted OSHA with broad authority to “regulate infectious diseases and viruses” like COVID-19, and 2) that OSHA, through its authority granted by Congress, has the constitutional prerogative to regulate employer actions in the workplace, as evidenced by other long-established employment laws such as the Fair Labor Standards Act and the National Labor Relations Act.

Finally, the majority acknowledged that the OSHA standard was designed to alleviate a grave risk of worker deaths related to COVID-19, especially in light of the Delta and Omicron variants, and thus the ETS was “necessary” to protect workers, even if it is not the only means to “quell the grave danger [posed by COVID-19].”

One of the three judges assigned to the case dissented, stating her belief that OSHA had exceeded its authority and arguing that OSHA “likely lacks congressional authority to force [unvaccinated individuals] to protect themselves,” despite also acknowledging that “few could dispute” the “size and scope” of “the societal costs of the pandemic.”

Next Steps for Employers

Of course, this development begs two questions: 1) what happens next in the litigation challenging the ETS, and 2) what should employers do now?

As to next steps, the challengers to the ETS can file an application for emergency relief to the United States Supreme Court, challenging the Sixth Circuit’s decision to lift the stay. It is almost guaranteed that the challengers will do so, although whether the high court will grant review is yet to be seen.

In response to the Sixth Circuit’s decision, the Department of Labor released enforcement information on the OSHA website the morning of Dec. 18, noting that it would resume enforcing the ETS. In order to give employers time to come into compliance with the ETS, OSHA will not issue citations for noncompliance of any aspect of the ETS before Jan. 10, 2022, and OSHA will not issue citations for the testing requirements before Feb. 9, 2022, for employers who make reasonable, good faith efforts to come into compliance with the ETS. Employers should keep these dates in mind, and stay tuned for potential further developments from the Supreme Court.

Taft’s Employment and Labor Relations Group will continue to monitor the situation. Should you have any questions regarding the ETS or need assistance in drafting a compliant testing/vaccination policy, please contact the Taft Employment and Labor Relations attorney with whom you regularly work.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.