The Occupational Safety and Health Administration’s vaccine-or-test Emergency Temporary Standard for large employers would have gone into effect yesterday, Dec. 6, if it wasn’t currently tied up in federal appellate courts.
Since the guidance was announced on Nov. 5, a handful of lawsuits from across the country have challenged the rule’s legal standing and it’s unclear when, or if, the rule will go into effect.
The ETS would apply to any employer under OSHA’s authority with 100 or more workers. It would require those employers to implement and enforce a written mandatory vaccine policy with exemptions for employees who have legally protected reasons to not get vaccinated. Any employee who is unvaccinated would need to receive a COVID-19 test once a week, which employers are not required to pay for, and wear a face mask while at work. Employers who do not comply with the ETS would be subject to a $13,653 fine for each serious violation, with penalties capped at $136,532. The ETS rules would require employers to comply with all rules except the testing requirements by Dec. 6 and then require testing by Jan. 4, 2022.
In just one month, the vaccine-or-test ETS has faced immense public criticism and many legal questions.
On Nov. 6, a day after the requirement was announced, the New Orleans-based 5th Circuit Court of Appeals issued a stay that prevented the ETS from going into effect. In its Nov. 12 review of the initial stay, the panel of judges for the 5th Circuit upheld its decision and argued that under the Commerce Clause and nondelegation doctrine, OSHA does not have the authority “to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” The judges added that looking past the constitutionality of the ETS, it is still “fatally flawed” by being “overinclusive” in the industries it applies to and “underinclusive” by not applying to companies with fewer than 100 employees.
Since OSHA was created in 1971, it has only issued an ETS 10 times, including the most recent one. Of those 10, six were challenged in court and only one was upheld (Vistron v. OSHA No. 78-3026 on Acrylonitrile or vinyl cyanide) by the 6th Circuit Court of Appeals in 1978.
The 6th Circuit Court of Appeals will once again hear an ETS challenge after it was picked by a lottery to consider a permanent injunction of the rule. The case consolidates litigation from federal districts across the country. Plaintiffs in the case include numerous employers and the states of Texas, Louisiana, Florida, Alabama, Georgia, Utah, Mississippi, Idaho, Kansas, Ohio, Oklahoma, Tennessee, West Virginia, Indiana, Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire and Wyoming. A number of those states have laws on the books preventing vaccine mandates in various forms.
The most recent order on the case by the 6th Circuit came on Friday, Nov. 3, when the appeals court denied a motion by the federal government for an expedited merits briefing schedule and a shortened stay briefing. The court will stick with its Nov. 23 order laying out the timeline for parties to join the case. The court also denied motions to move the consolidated case back to the 5th Circuit or the D.C. Circuit.
The 6th Circuit has yet to issue orders on a couple of pending actions including several initial en banc review motions filed by plaintiffs and a motion by state petitioners that OSHA produce a complete administrative record to explain the basis of the ETS.
The ETS is one of several federal COVID-19 vaccine and employment regulations. In November, the Centers for Medicare and Medicaid Services announced requirements for workers at healthcare facilities participating in Medicare or Medicaid to be fully vaccinated by Jan. 4, 2022. In September, President Biden issued an executive order requiring vaccinations for federal employees and contractors. The deadline for the order has continually been pushed back, but recent rulings out of federal courts in Kentucky and Georgia have halted the rule from going into effect pending further judicial review.