OSHA's ETS Vaccine Mandate Is Back, Says the Sixth Circuit, but OSHA Grants More Time for Employers to Comply

Alerts / December 21, 2021

A three-judge panel of the Sixth Circuit, on Dec. 17, 2021, considered whether or not to extend the Fifth Circuit’s stay of the OSHA emergency temporary standard vaccine mandate or to reinstate the mandate. In a 2-1 majority opinion, the court squarely disagreed with the Fifth Circuit and opined that OSHA likely acted within its authority to necessarily combat the progressively grave danger and emergency of COVID-19. The court lifted the stay pending any further ruling from the United States Supreme Court.

The majority discounted the Fifth Circuit’s reasoning that OSHA’s delay in enacting the ETS until November 2021 was contrary to an emergency as required by the statute. The Sixth Circuit stated that as early as April 2020, OSHA attempted to achieve voluntary compliance with safety guidelines and only enacted the mandate based on the later emergency of rapidly spreading variants that increased infection and transmission. The majority defers to what it described as OSHA’s progressively tailored steps for addressing the evolving emergency. The majority also determined that a “grave danger” exists in the workplace because COVID-19 can be fatal.

The majority found that OSHA acted within its authority by taking a “holistic view” of the entire statute to conclude that the virus is an “agent” that causes bodily harm within the scope of the statute. The opinion states that the OSH Act contemplated immunizations to combat harmful agents because it contains a limited exemption for immunizations on religious grounds. The majority further concludes that OSHA has the authority to regulate vaccinations because Congress in the past has authorized it to require protection against bloodborne pathogens, mandate hazardous waste cleanup, require respirator use to prevent occupational disease, and require adequate toilet and handwashing facilities. The majority states the fact that the virus is not exclusive to workers does not preclude OSHA from regulating the hazards of viruses because the risk of exposure exists outside the workplace since no virus is exclusive to the workplace.

The Sixth Circuit majority opinion wrote that OSHA demonstrated with substantial evidence that the mandate was necessary to reduce the grave danger of COVID-19 in the workplace, citing scientific evidence that supports the efficacy of vaccines, testing and masking. The court declined to require OSHA to show that the mandate was “indispensable” by ruling out other alternatives. The majority criticized the Fifth Circuit for not addressing any of OSHA’s factual explanations or supporting scientific evidence concerning harm. The court rejected the “overinclusive” and “underinclusive” conclusions by the Fifth Circuit by essentially deferring to OSHA’s line drawing in an emergency situation.

The majority concluded that the major questions doctrine, requiring Congress to speak clearly in order to delegate power to an agency, does not apply to this case. As grounds, the majority states that it does not view the mandate as a transformative expansion of regulatory authority triggering the requirement of congressional clarity in delegating power because OSHA has acted to control the spread of disease in the past.

Judge Gibbons in her concurrence emphasized that, while reasonable minds may disagree on OSHA’s approach to the pandemic, the court’s only responsibility is to determine, as the majority does, that the agency acted within the bounds of its authority. 

Judge Joan Larsen in dissent opined that the stay should remain in place because OSHA lacks statutory authority to issue the mandate. Judge Larsen concluded that OSHA simply failed to find that the mandate was “necessary,” meaning “indispensable,” and not just “reasonably appropriate.” The dissent chides the majority opinion for first stating that OSHA was required to demonstrate that the ETS was essential, but later in its opinion acquiescing to the lesser standard of requiring  only a “reasonable relationship” to the problem. The dissent emphasizes that the overly broad mandate exceeds delegated authority by failing to consider more narrowly tailored solutions, such as a standard aimed to protect only the most vulnerable workers or an exemption for the least vulnerable workers, and by failing to target specific industries or workplaces with the greatest risk. 

Separately, the dissent concludes that OSHA failed to consider the “likelihood” of grave danger due to COVID-19. Judge Larsen wrote that OSHA has failed to identify any rate or risk of workplace exposure to COVID-19 and the generalized exposure data relied upon by OSHA is not limited to exposure within the workplace walls where Congress has marked the limit of OSHA’s authority. 

The dissent concludes that even if there were doubts on OSHA’s authority, the major questions doctrine required a finding of no authority here because Congress has not spoken clearly to vest OSHA with such claimed vast power of economic and political significance, covering 84 million workers. The dissent cites as comparative authority the Supreme Court’s recent rejection of the CDC’s attempt to impose an eviction moratorium for counties with high levels of COVID-19 exposure as lacking clear Congressional authority.[1]

What Happens Next?

On Saturday, Dec. 18, the day after the Sixth Circuit’s decision, OSHA stated that as a result of the previous stay, OSHA is delaying the original enforcement dates of the mandate. According to OSHA, it “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.”

Almost immediately following the Sixth Circuit decision, several petitioners appealed to the United States Supreme Court, asking it to reinstate the stay. Justice Brett Kavanaugh is empowered to decide whether or not to grant the emergency request. Justice Kavanaugh can be expected to weigh four factors in his decision:

  1. Whether there is a “reasonable probability” that four justices will grant certiorari, or agree to review the merits of the case;
  2. Whether there is a “fair prospect” that a majority of the court will conclude upon review that the decision below on the merits was erroneous;
  3. Whether irreparable harm will result from the denial of the stay;
  4. Whether, in a close case, the balance of the equities includes exploring the relative harms to the applicant and respondent as well as the interests of the public at large.
What to Do Now

No one can accurately predict how quickly the Supreme Court may render a decision or the outcome. Given the compressed nature of the ETS and the impending Jan. 10 and Feb. 9 deadlines, we previously advised all employers subject to the OSHA ETS to prepare to comply with the mandate instead of attempting to predict court outcomes. While employers await a decision by the Supreme Court, we once again reiterate that employers should prepare to comply with the Jan. 10 and Feb. 9 deadlines while closely monitoring litigation as well as addressing the issue of certain conflicting state and local requirements.

[1] See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Serv., 141 S.Ct. 2485 (2021)

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