Developments immediately before the holiday break have many employers scrambling as the OSHA ETS has seemingly come back to life. The Sixth Circuit, in a 2-1 decision by a 3-member panel, dissolved the temporary stay previously issued by the Fifth Circuit Court of Appeals halting enforcement of the OSHA ETS. OSHA was waiting for the ruling from the Sixth Circuit, and had agreed not to enforce the ETS “pending future developments in the litigation.” The question now:  because we have a “development in the litigation” that allows OSHA to enforce its ETS, will it do so? And, when? These are especially troubling questions in light of the ETS’ January 4 deadline for full implementation.

Before you panic, just before midnight on Friday, OSHA issued guidance on these questions through its website:  “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.” 

So what happened?  Late yesterday afternoon, on Friday, December 17, 2021, the Sixth Circuit Court of Appeals issued its long-awaited opinion addressing the stay of the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 (ETS). The Opinion comes almost one month after the Sixth Circuit had won the lottery conducted by the federal Judicial Panel on Multidistrict Litigation to decide several legal challenges to the ETS filed in several federal courts. 

Here’s a quick analysis of the Sixth Circuit’s Opinion that has breathed new life into the Biden Administrations’ efforts to curb the continued spread of COVID-19 in this country, and a recap of events leading to the Opinion.

• On November 5, OSHA issued the ETS. The ETS contained various implementation dates and deadlines – including a mandatory vaccination or test and mask requirement by January 4, 2022, for all employers who have 100 or more employees.

• The very next day, the Fifth Circuit Court of Appeals entered a “stay” of the ETS pending judicial review. And, less than one week later, on November 12, the Fifth Circuit renewed its decision and issued an opinion supporting the stay. The November 12 decision and opinion ordered OSHA to “take no steps to implement or enforce” the ETS “until further court order."

• As challenges in support and against the ETS were filed in every federal judicial circuit throughout the country, the U.S. Government invoked its right to have a lottery procedure held to determine which Circuit Court would hear all of the consolidated cases. On November 16, the Judicial Panel on Multidistrict Litigation held the lottery, and the Sixth Circuit won.

• The Government then filed a motion seeking to have the stay dissolved on November 23^rd. The case and motion was then assigned to a 3-judge panel.

The Opinion Lifts the Stay

In concluding that the stay should be dissolved, the court accepted OSHA’s authority to issue an emergency temporary standard to protect workers from COVID-19, which it concluded is a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or new hazards.” The court also rejected the Fifth Circuit’s conclusion that OSHA had over-stepped its regulatory power because it was attempting to make “health policy” instead of addressing safety concerns in the workplace. It further rejected other conclusions from the Fifth Circuit opinion which had granted the stay, and held that the balance of harms that would be suffered if the stay was allowed to remain in place were greater to the government and public interest. On this final point, the Sixth Circuit noted: “[f]undamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut  down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.”

The Future of the ETS

So, what will happen now?

It is assured that this is not the end of the litigation over the ETS. Petitioners likely have two options:  (i) seek a review by the entire Sixth Circuit Court of Appeals (known as an en banc review), or (ii) appeal to the U.S. Supreme Court. As we reported, the same Fifth Circuit Court of Appeals that had issued the stay with respect to the OSHA ETS, had dissolved a nationwide stay of the CMS mandate (applicable to healthcare and healthcare-related employers) on December 15, leaving in place the stay for approximately half of the country. The government has filed petitions for review before the Supreme Court with respect to that stay earlier this week. In addition, the federal contractor mandate is winding its way thru the courts and could quickly end up in the Supreme Court as well.

All roads are seemingly leading to a possible consolidation of all three government actions before the Supreme Court. That legal process could take weeks to several months. But, for now, the OSHA ETS is back, and OSHA has the authority to enforce it.

What does this mean for employers?

As we had counseled earlier, there are various steps employers should take to come into compliance with the ETS.  As mentioned above, OSHA has stated it will not issue citations for noncompliance “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the rule. This means employers should, at a minimum, develop their COVID-19 workplace policy, begin to get proof of vaccination status of employees, inform employees who are not vaccinated that they will be required to mask and test, and begin determining how they will implement the testing requirement. (For a quick summary of the ETS, you can re-read our earlier post here.)