December 21, 2021

OSHA’s Vaccine-or-Test Mandate for Large US Employers is Reinstated, Prompting Request for Supreme Court Intervention


On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s nationwide stay of the US Occupational Safety and Health Administration’s (OSHA) “vax or test” Emergency Temporary Standard (ETS), which applies to US employers with 100 or more employees. As we explained in a prior Legal Update, under the ETS, employers must have either a mandatory-vaccination policy or a vaccination-or-test policy for their employees. This Legal Update addresses three issues: (1) current compliance requirements for employers; (2) the status and timing of the ongoing litigation; and (3) the main arguments being made in the litigation.

I. The ETS requirements have been revived, but OSHA has temporarily delayed enforcement of them.

On December 17, 2021, the same day that the Sixth Circuit lifted the stay, OSHA announced that it had adjusted the deadlines for employers to comply with the requirements of the ETS. Specifically, OSHA explained that it was “exercising enforcement discretion with respect to the compliance dates of the ETS” to account for the prior stay by the Fifth Circuit. The ETS’s requirements now go into effect January 10, 2022, except for the requirement to test unvaccinated employees, which goes into effect February 9, 2022. OSHA explained that 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 also added that it “will work closely with the regulated community to provide compliance assistance.”

In a prior Legal Update, we discussed the ETS’s specific requirements for employers. Those requirements are once more in effect, subject to the new January 10 and February 9, 2022, deadlines. The ETS still presents a number of challenges for covered employers, even those that have already implemented mandatory vaccination policies. In light of the Sixth Circuit’s decision, employers should promptly take steps to comply with the ETS’s requirements by OSHA’s January 10 implementation deadline (and, as applicable, with the ETS’s weekly-testing requirement by the February 9 deadline). Doing so will help demonstrate that employers are exercising reasonable, good-faith efforts to comply with the various requirements of the ETS and guard against potential fines by OSHA. The steps employers should take promptly include, at a minimum: (1) gathering and maintaining employees’ vaccination status; (2) establishing, drafting, communicating and implementing a written policy on vaccination; (3) providing time off, as needed, for employees to get vaccinated; (4) providing employees with several categories of OSHA-required information related to the ETS; and (5) making certain statistical information related to vaccination in the workplace available to employees.

Employers should also be mindful that, in the past week, the Equal Employment Opportunity Commission (EEOC) supplemented its COVID-19 technical guidance by explaining that COVID-19 may qualify as a disability under the Americans with Disabilities Act (ADA). The EEOC highlighted the following points in its supplemental guidance:

- In certain cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, whether or not the initial case of COVID-19 was an actual disability.

- An applicant or employee whose COVID-19 produces mild symptoms that resolve in a few weeks—with no other consequences—will not have a disability under the ADA that would make the individual eligible to receive a reasonable accommodation.

- An applicant or employee with a disability is not automatically entitled to a reasonable accommodation under the ADA. Such individuals are entitled to a reasonable accommodation when their disability requires it, and the accommodation does not create an undue hardship for the employer.

- An employer risks violating the ADA by relying on myths, fears or stereotypes about a medical condition and preventing an employee’s return to work once the employee is no longer infectious and, therefore, able to return without posing a direct threat to others in the workplace.

Employers should review the EEOC supplemental guidance and consider it carefully when implementing and enforcing mandatory vaccination policies because disability-related accommodation issues continue to arise in a variety of contexts as the pandemic rages on.

As discussed below, various parties that have challenged the ETS have asked the Supreme Court to reverse the Sixth Circuit and stay enforcement of the ETA. But employers who simply wait to see how all of the pending litigation ultimately plays out run the risk of incurring potential monetary penalties by OSHA and facing other challenges if they are unprepared to comply with the ETS when the January 10 deadline arrives.

II. The challengers have asked the Supreme Court to stay enforcement of the ETS.

After OSHA finalized the ETS on November 4, 2021, challengers sued in several courts of appeals to prevent OSHA from enforcing it. One of those courts, the Fifth Circuit, stayed enforcement of the ETS nationwide. After the stay was imposed, the Judicial Panel on Multidistrict Litigation consolidated all of the challenges to the ETS in the Sixth Circuit. In the Sixth Circuit, the challengers moved for initial en banc (full court) review of the ETS, and the government moved to lift the Fifth Circuit’s stay.

On December 15, 2021, the Sixth Circuit in an 8-8 vote denied the challengers’ request for initial en banc review. On December 17, 2021, a Sixth Circuit panel in a 2-1 vote dissolved the Fifth Circuit’s nationwide stay.

The same day that the Sixth Circuit lifted the stay, the challengers asked the Supreme Court to intervene to stay enforcement of the ETS. They alternatively asked the Supreme Court to grant certiorari before judgment, i.e., to hear the case on the merits even before the Sixth Circuit does so. Below is an analysis of what we expect will happen next. The bottom line is that we think this case will move quickly in the Supreme Court.

- The petitioners have asked the Supreme Court to stay enforcement of the ETS or to grant certiorari before judgment.

  • Emergency stay. The challengers filed an application with the Supreme Court to stay enforcement of the ETS. In deciding whether to grant a stay, the Supreme Court considers three factors—whether it is likely to grant certiorari to review the merits; whether it is likely to rule for the challengers on the merits; and whether the challengers are likely to suffer irreparable harm if a stay is not granted.
  • Certiorari before judgment. Alternatively, the petitioners asked the Supreme Court to grant expedited review on the merits, so that the case would just skip past the Sixth Circuit, and the Supreme Court would decide the merits. In deciding whether to grant certiorari before judgment, the Court considers whether deviating from the normal appellate practice is justified because the case is of imperative public importance. The Supreme Court recently granted certiorari before judgment in the cases involving the Texas abortion law (SB8).

    The Supreme Court only does this very rarely, because it generally prefers a court of appeals to decide the merits first. So, the Court could just stay enforcement of the ETS and let the Sixth Circuit decide the merits in the first instance. But here, several Justices may want to go further and actually decide the merits, in order to provide a final ruling so that regulated parties know what is expected of them.

The Supreme Court has asked the government to respond to the challengers’ filings by December 30, 2021. Once the government files its response, we expect the Supreme Court to decide quickly whether to impose a stay and/or grant certiorari to decide the merits.

- The parties will also litigate the merits, either in the Sixth Circuit or the Supreme Court.

  • Sixth Circuit review. Unless the Supreme Court grants certiorari before judgment, the parties will brief the merits in the Sixth Circuit. (The arguments are outlined below.) The Sixth Circuit has not yet set a briefing schedule. It normally takes the Sixth Circuit ~8 months to decide a case, but this case will probably move much faster than that because of the national significance of the case.
  • Supreme Court review. If the losing party in the Sixth Circuit seeks Supreme Court review, the Supreme Court likely will decide whether to grant review and, if it grants review, schedule argument quickly. There is a possibility that OSHA could issue a new standard before the Supreme Court makes a decision, because the ETS is an interim emergency standard, and OSHA is supposed to issue a final standard by early May. See 29 U.S.C. § 655(c)(3). Issuing a new rule normally would moot the pending litigation about the original rule.

III. On the merits, the challengers are arguing that the ETS exceeds OSHA’s statutory authority, is arbitrary and capricious, and is unconstitutional.

In challenging the ETS, the challengers have made four primary arguments. A brief analysis of the arguments is provided below.

1. Did OSHA exceed its authority under the Occupational Safety and Health Act?

The challengers’ main argument is that the ETS is beyond the scope of OSHA’s statutory authority. The Occupational Safety and Health Act of 1970 gives OSHA authority to issue emergency temporary standards if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and the ETS is “necessary to protect employees from such danger.” 28 U.S.C. § 655(c)(1). The ETS mandates that employers require vaccination or offer their employees the option to mask and test.

  • Vaccines are not “agents” under the Occupational Safety and Health Act. The challengers argue that OSHA does not have the power under the Act to issue rules regarding viruses, because viruses are not “agents.” However, the Sixth Circuit concluded that the ordinary meaning of “agent” includes infectious agents like viruses, and that other parts of the Act show that Congress intended to give OSHA the power to regulate viruses. The Sixth Circuit further stated that it makes sense that Congress would give the national workplace-safety regulator authority to respond to the risk of infectious diseases in the workplace.
  • Mandating vaccines nationally is a significant question that Congress did not clearly delegate to OSHA. The Fifth Circuit held that whether the Act gives OSHA the power to issue the ETS is a question of vast economic and political significance, and therefore a court should not defer to OSHA’s interpretation of the Act. The Sixth Circuit disagreed, holding that the ETS is within OSHA’s regulatory authority, because the Act allows OSHA to issue emergency rules “necessary to protect employees” from “substances or agents determined to be toxic or physically harmful.” The Sixth Circuit further held that the ETS is similar to past nationwide regulations issued by OSHA, and that requiring employees to choose between vaccination and masking/testing is no more significant than the other OSHA safety rules.

2. Is the ETS arbitrary and capricious?

The challengers argue that the ETS is “arbitrary” and “capricious,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). To survive arbitrary-and-capricious review, OSHA must show that there was a reasonable basis for it to issue the ETS—i.e., that in exercising its authority under the Occupational Safety and Health Act, OSHA reasonably concluded that the ETS is “necessary” to protect employees from a “grave danger” posed by COVD-19. The challengers’ argument has several parts:

  • There is no sound scientific basis for a vaccine mandate. The challengers argue that the ETS is arbitrary and capricious because it is based on unsound science. The Sixth Circuit held that the ETS is based on a detailed analysis of studies showing evidence of exposure, transmission, clusters and outbreaks across workplace types.
  • OSHA changed its position on the need for a vaccine mandate. An agency rule may be arbitrary and capricious if the agency changes its position without explaining why, and the challengers argue that OSHA did that here. Although OSHA did not issue an emergency standard earlier in the pandemic, the Sixth Circuit held that OSHA’s reasons for delaying made sense: earlier in the pandemic, scientific evidence about COVID-19 and ways to mitigate it were underdeveloped; the rise of new variants has increased infectiousness and transmission; more workers are returning to work; and voluntary compliance measures have not stopped the spread. In view of those facts, the Sixth Circuit held that OSHA’s delay was not arbitrary or capricious.
  • The vaccine mandate is overinclusive. An agency rule may be arbitrary and capricious if it regulates more broadly than necessary to accomplish the agency’s goals. The challengers argue that requiring all employers with 100 or more employees to have a vaccination-or-testing policy is broader than necessary to protect against COVID-19 risks. The Sixth Circuit held that OSHA is allowed to overprotect when issuing an emergency rule, and that OSHA tailored the ETS based on risk, exempting those who work remotely, alone or outdoors.
  • The vaccine mandate is underinclusive. An agency rule may be arbitrary or capricious if the agency does not explain why the rule applies in some situations, but does not apply in other similar situations. The challengers argue that the ETS violates that principle because it exempts employers with fewer than 100 employees. The Sixth Circuit rejected that argument, accepting OSHA’s explanation that the 100-employee threshold was intended to focus on employers that have sufficient administrative systems to comply by the deadline and that are more likely to have groups of employees gathering.
  • OSHA should have decided on a workplace-by-workplace basis whether a mandate is necessary. The challengers argue that the ETS is arbitrary and capricious because OSHA relied on nationwide studies, but it should have made a workplace-by-workplace determination. The Sixth Circuit rejected that argument, holding that the evidence the agency relied on shows risk across workplaces. The Sixth Circuit also held that OSHA does not need to investigate every business to demonstrate the need for the ETS.

3. Does the ETS violate the Religious Freedom Restoration Act?

A set of challengers is arguing that the ETS violates the Religious Freedom Restoration Act (RFRA). RFRA prohibits the government from enacting laws that “substantially burden a person’s exercise of religion” unless it furthers a “compelling governmental interest” and is the “least restrictive means” of doing so. 42 U.S.C. 2000bb-1. The ETS allows companies to exempt employees from the vaccination requirement based on their sincerely held religious beliefs and/or to make reasonable accommodations from COVID-19 testing for religious reasons.

The challengers say that this is insufficient, because having to ask if employees have a religious objection to vaccination, and tracking and reporting employees’ answers, substantially burdens the challengers’ exercise of religion. The government’s stay brief in the Sixth Circuit did not respond to the challengers’ RFRA argument, and the Sixth Circuit did not address it.

4. Is the ETS unconstitutional because it violates the Commerce Clause or the non-delegation doctrine?

  • Commerce Clause challenge. The challengers argue that the ETS violates the Commerce Clause because vaccination and testing are non-economic activity, and their regulation is a traditional power of States, not the federal government. The Sixth Circuit found this argument unconvincing. The Sixth Circuit held that the ETS has a nexus to interstate commerce (which is all that is constitutionally required) because it regulates employers.
  • Non-delegation doctrine challenge. The challengers also argue that the Act exceeds Congress’s power to delegate regulatory authority to an administrative agency. Congress exceeds that power only if it has not articulated any standard to confine agency discretion. Only twice, in 1935, has the Supreme Court invoked that principle to strike down a statute. The Sixth Circuit held that the non-delegation doctrine is inapplicable here because the Act provide clear standards—it permits only measures necessary to protect employees from the grave danger of new hazards or exposure to physically harmful agents.

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