Summary of Changes to OSHA's COVID-19 Vaccination Mandate (as of Dec. 17, 2021)
ISSUE 1: Vaccinate or Test Rule for Large Employers
- Mandate reinstated by federal court decision: On Friday, December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), which imposes “vaccinate or test” requirements for private employers.
- Appeal to U.S. Supreme Court filed: Shortly after the decision was announced, a broad coalition of trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay pending Supreme Court review.
- OSHA extends employer grace period and delays enforcement of vaccine-or-test mandate: OSHA granted employers a limited grace period to comply with the ETS’ requirements. Per OSHA, employers now have until January 10 to develop compliant policies and until February 9 to begin testing programs so long as employers demonstrate good faith efforts to comply with the standard.
Reasons cited by the Sixth Circuit:
- In its 2-1 decision, a three-judge panel determined that OSHA has clear authority to regulate viruses and infectious diseases, as it has done, for example, in implementing the bloodborne pathogen regulation, enforcing the Needlestick Safety and Prevention Act, and establishing protections from harmful heat, dust, and fog.
- The Sixth Circuit also stated that OSHA has the authority to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses in the workplace.
- The panel further stated that COVID-19 poses a particular and pervasive danger for unvaccinated workers in the workplace and that there is a heightened risk of exposure when people are at work.
- The Sixth Circuit panel concluded that COVID-19 still poses an emergency, given a recent rapid increase in COVID-19 infections that can cause severe health effects, noting evolving strains like the Delta and Omicron variants which continue to “spread, mutate, kill and block the safe return of American workers to their jobs.”
- The court determined that the ETS is “necessary to protect employees from the identified danger” and “the emergence of the Delta variant . . . significantly changed public health policy and underscored a need for issuing an ETS – not only to control the variant itself but to control the spread of the disease to slow further mutations.”
- Regarding the application of the ETS to employers with 100 or more employees, the court accepted OSHA’s reasoning that the ETS is economically feasible for such employers based on OSHA’s economic analysis showing little to no harm to businesses because the benefits will outweigh the costs.
- The court stated that Congress addressed regulating employers when it passed the OSH Act and that Congress intended the OSH Act to preempt state and local standards that conflict with an OSH Standard.
Emergency Petition for Review and Stay
An emergency application for an immediate stay and/or a petition for review by the U.S. Supreme Court was filed soon after the Sixth Circuit court decision was released.
The Application asserts that:
- OSHA has exceeded its authority
- OSHA has only narrow emergency power
- The ETS will inflict irreparable harm against most private employers that collectively employ millions of Americans; and
- Costs incurred by employers for testing millions of employees who refuse to be vaccinated
- Employer costs, passed on to consumers, will compound an already fragile supply chain and the labor market at the peak holiday season
- Requiring either vaccines or COVID-19 testing will cause a large number of unvaccinated employees to quit their jobs or be separated for non-compliance, leaving employers to close their doors or reduce hours and ultimately reduce services to consumers
ISSUE 2: Vaccination Mandate for Federal Contractors
In contrast to the Sixth Circuit decision, on the same day, the U.S. Court of Appeals for the Eleventh Circuit upheld the nationwide preliminary injunction against the vaccination mandate applicable to federal contractors, pending further review.
Nationwide Preliminary Injunction Upheld for Federal Contractor Mandate
The Eleventh Circuit Court of Appeals handed down a decision on vaccination mandates in contrast to the Sixth Circuit, denying the Biden administration’s request to dissolve a nationwide preliminary injunction issued by a federal district judge in Georgia on December 7 against the federal contractor vaccination mandate.
Reasons cited by the Eleventh Circuit:
- The court found that the Biden administration had failed to demonstrate “irreparable harm to the federal government” necessary to lift the injunction
- An expedited schedule for briefing on the merits of the appeal extends into late January 2022
Emergency Petition or Appeal to U.S. Supreme Court?
It is unclear at this time whether the Biden administration will file an emergency petition for rehearing before the entire circuit court, file an emergency appeal to the Supreme Court, or leave the injunction in place until the full merits are heard in January.