- Lisa Nagele-Piazza
6th Circuit to Review OSHA’s Workplace Vaccine-or-Testing Rule
November 17, 2021.
An appeals court recently halted the federal government's rule requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. However, since similar challenges were filed in other courts, the 6th U.S. Circuit Court of Appeals was randomly selected to hear a consolidated action.
Ultimately, the U.S. Supreme Court could decide whether to uphold the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS).
On Nov. 6, the 5th U.S. Circuit Court of Appeals temporarily suspended the rule while it considered a challenge brought by state attorneys general and private employers, including locally owned supermarkets, that oppose the directive. The employers argued that OSHA's "claimed authority over [employees'] private lives and vaccine status is an egregious government overreach." On Nov. 12, the 5th Circuit reaffirmed its suspension of the rule.
The U.S. Department of Justice defended the ETS. "In the standard, OSHA provided over 100 pages of thoroughly reasoned analysis showing that COVID-19 presents a 'grave danger' to unvaccinated workers, and that the requirements of the standard were 'necessary' to address that grave danger," according to the department.
The rule is expected to cover more than 80 million workers.
6th Circuit Wins Lottery
When lawsuits are filed with multiple courts challenging the same agency order, the agency must notify the judicial panel on multidistrict litigation, which will randomly select one court to hear the challenges. The 6th Circuit Court of Appeals was selected through the lottery system on Nov. 16 to hear the consolidated action and will be authorized to uphold or lift the 5th Circuit's order halting the rule. The Cincinnati-based court is made up of 11 judges appointed by Republican presidents and five appointed by Democratic presidents.
Supreme Court May Have Final Say
A three-judge panel from the 6th Circuit will now hear the case, but parties can petition the court to transfer the case to another circuit. Ultimately, however, the Supreme Court will likely decide the fate of the vaccination-or-testing directive.
House Republicans Seek to Nullify ETS
On Nov. 17, Republican members of the U.S. House of Representatives Education and Labor Committee introduced a Congressional Review Act resolution, which (if approved) would make the ETS unenforceable and prevent OSHA from issuing a "substantially similar" rule in the future without authorization from Congress. "The Biden administration's unprecedented mandate, which the U.S. Court of Appeals for the Fifth Circuit recently found to be likely unlawful and unconstitutional, constitutes a vast government overreach into the private sector," according to a press statement from the Committee on Education and Labor Republicans.
Retail Groups Raise Concerns About Burden on Workplaces
Employers in some industries are concerned about the impact of the vaccine-or-testing rule in a tight labor market.
"Over the past 19 months, retailers across the country have taken extraordinary measures to keep their employees, customers and communities safe during the COVID-19 pandemic," said David French, the National Retail Federation's senior vice president of government relations. "It is critical that the rule not cause unnecessary disruption to the economy, exacerbate the pre-existing workforce shortage or saddle retailers, who are already taking considerable steps to keep their employees and customers safe, with needless additional requirements and regulatory burdens."
The Retail Industry Leaders Association said the rule "pits government against private employers instead of working with them to create a safe working environment."
Large Businesses Show Support for Vaccination Requirements
When the highly contagious delta variant caused COVID-19 cases to surge over the summer, many large businesses—including CVS Health, Facebook, Lyft, major airlines and health care facilities—began to mandate vaccination for all or some of their workers. Courts have generally upheld such policies.
December Deadline Looms
Compliance deadlines are rapidly approaching. Among other steps, businesses will need to determine the vaccination status of each employee and develop a written vaccination-or-testing policy by Dec. 6, according to OSHA. Unvaccinated workers will be required to wear masks indoors by Dec. 6 and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.
OSHA has taken some pressure off employers by suspending implementation and enforcement of the ETS after an appellate court stayed the rule. But OSHA stated it "remains confident in its authority to protect workers in emergencies."
"It will take weeks of planning for an employer to comply with the ETS deadlines if it does survive all legal challenges," said Ashley Cuttino, an attorney with Ogletree Deakins in Greenville, S.C. "Employers do not want to find themselves in a position where they are not ready if the ETS survives."
That may be a big "if"—see a recent Wall Street Journal opinion piece betting on the rule's ultimate defeat—but risk-averse organizations may want to prepare in case the OSHA rule eventually is upheld.
OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:
Employees are exposed to grave danger from the hazard.
The ETS is necessary to protect employees from that danger.
According to the Congressional Research Service, "In the nine times OSHA has issued an ETS [prior to its COVID-19 health care ETS], the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case."
5 Steps to Help Create a Workplace COVID-19 Vaccination Policy
If OSHA's ETS survives the legal challenge, human resource professionals will have a lot of work to do to comply with the requirement to create a written COVID-19 vaccination-or-testing policy. Here are some considerations for employers as they develop their plans.