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On December 17, 2021, the Sixth Circuit Court of Appeals, in a 2-1 decision, dissolved the Fifth Circuit’s stay of enforcement of OSHA’s Emergency Temporary Standard (“ETS”). The ETS requires, among other things, that employers with 100 or more employees ensure that all employees be fully vaccinated against COVID-19 or be required to wear face coverings and undergo weekly testing subject to limited exceptions.

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Because multiple petitions challenging the ETS had been filed in several circuits after the ETS was first published on November 5, the judicial panel on multidistrict litigation conducted a lottery to select one court of appeals to hear the petitions. On November 16, 2021, the Sixth Circuit was chosen in that lottery and all petitions were ultimately consolidated there. OSHA then filed an emergency motion to dissolve the Fifth Circuit’s stay of the ETS. That petition was considered by a three-judge panel.

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The panel considered an array of arguments raised by petitioners and the agency. As an initial matter, it found that OSHA had the statutory authority to implement a national vaccine-or-test mandate and that as an agent that causes bodily harm, a virus clearly falls within the scope of OSHA’s emergency standard statutory authority. The Court referred to OSHA’s longstanding authority to protect workers against infectious diseases, both through the OSH Act and other statutes and noted that considering the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Second, the Court found that the major questions doctrine was inapplicable both because OSHA had been granted the appropriate authority and because the ETS was not a tremendous expansion of OSHA’s prior regulatory powers given that OSHA has been regulating workplace health and safety for decades. Third, it concluded that the ETS was based on substantial evidence, that OSHA had enacted the ETS in a reasonable manner, and that the pandemic constituted a true emergency. Fourth, the Court also found that the risks posed by exposure to COVID-19 in the workplace did, in fact, constitute a “grave danger” as required under the OSH Act.

Finally, the Court also concluded that the ETS was not a vaccine mandate because employers have the option of allowing employees to instead mask and undergo weekly testing. In addition, the Court found that delaying the implementation of the ETS put workers and the general public at additional risk given the ongoing spread of COVID-19.

On December 18, 2021, OSHA announced that it would not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements for those who are not vaccinated, which will not be enforced until February 9, 2022, as long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Therefore, employers need to be aware that the ETS is now in effect, but OSHA will not engage in enforcement activities until the modified deadlines provided that employers are engaged in reasonable, good faith compliance efforts.

Notably, none of the 22 OSHA-approved State Plans covering private employers have taken steps to enact an ETS compliant with OSHA’s ETS, even though they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. OSHA approves and monitors all OSHA State Plans and provides as much as 50 percent of the funding for each program. State-run safety and health programs must be at least as effective as the federal OSHA program. It is unclear whether the Fifth Circuit stay that was in effect until December 17 tolled the deadlines for OSHA State Plan adoption deadlines. The ETS, however, has immediate effect in the other 29 states and territories, subject to the new enforcement delays.

As expected from the beginning, this matter will ultimately be determined by the United States Supreme Court. Several parties have already filed emergency applications seeking a stay of the Sixth Circuit’s decision pending a ruling from the Supreme Court.

While the Sixth Circuit has lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption. Significantly, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah and West Virginia have enacted measures that would restrict or impact vaccination requirements. Some of these states have OSHA State Plans and some are federal OSHA jurisdictions which leaves many unanswered questions regarding compliance and enforcement.

While the OSHA ETS does include an exemption, under 29 CFR 1910.501(b)(2)(i), for workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (i.e., covered by the federal contractor mandate for ensuring employees are vaccinated, subject to exemptions for religious or disability reasons), a nationwide stay of that federal contractor vaccine mandate is currently in place. Absent further guidance from the U.S. Department of Labor on this issue, government contractors should endeavor, to the extent not currently in place, to implement policies regarding applicable COVID-19 safety protocols as well as tracking vaccinated and non-vaccinated employees at U.S. facilities in the United States on or before January 10, 2022 consistent with the requirements of the OSHA ETS.

Nancy M. Barnes 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

Scott Young 513.352.6617 202.263.4134 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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Sixth Circuit Court of Appeals Dissolves Stay of OSHA Emergency Temporary Standard

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