OSHA COVID-19 ETS – Legal Challenges

January 14, 2022
January 13, 2022 Update: On January 13, 2022, the Supreme Court of the United States stayed implementation of the Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to comply with mandatory vaccination or weekly testing requirements. In a 6-3 decision finding that the parties opposing the ETS “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate,” the Court explained that although Congress has given the Occupational Safety and Health Administration (“OSHA”) the authority to regulate occupational dangers “it has not given that agency the power to regulate public health more broadly.” The stay of the ETS will remain in effect pending the Sixth Circuit’s review of the merits.
 
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote a concurring opinion.
 
December 23, 2021 Update: On December 22, 2021, the Supreme Court of the United States issued an order consolidating the emergency applications for an injunction and setting oral argument for Friday, January 7, 2022. The order noted that Justice Brett Kavanaugh, the Circuit Justice for the Sixth Circuit to whom the emergency applications were addressed, referred the applications to the full Court, and that a decision on the emergency applications is “deferred pending oral argument.” As such, the order by the U.S. Court of Appeals for the Sixth Circuit granting the government’s motion to dissolve the stay remains in force for now, pending the Court’s decision following oral argument.
 
December 21, 2021 Update: All legal challenges were consolidated before the U.S. Court of Appeals for the Sixth Circuit on November 16, 2021. On November 23, 2021, the government filed a motion to dissolve the stay issued by the U.S. Court of Appeals for the Fifth Circuit of the ETS, and the Sixth Circuit set a briefing schedule for responses and reply briefs. On December 3, 2021, the Sixth Circuit issued an order resolving the various procedural motions. Our blog post on that order is available here.
 
On December 15, 2021, the Sixth Circuit issued an order denying petitions for initial hearing en banc of the government’s motion to dissolve the Fifth Circuit’s stay of the ETS. Eight of the 16 active judges on the Sixth Circuit dissented from the denial of initial hearing en banc.
 
On December 17, 2021, a three-judge panel of the Sixth Circuit granted the government’s motion, dissolving the stay issued by the Fifth Circuit. Judge Stranch wrote the majority opinion, joined by Judge Gibbons, who also wrote a concurring opinion. Judge Larsen dissented.
 
In dissolving the stay, the majority opinion held that OSHA had “clear and exercised authority to regulate viruses” and therefore “necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” The majority opinion further held that OSHA was justified in issuing the ETS because COVID-19 poses a “grave danger” to the workplace and the ETS was “necessary to protect employees” from that grave danger. The majority opinion then dismissed as unpersuasive constitutional challenges to the ETS, based on the Commerce Clause and the non-delegation doctrine, and determined that the petitioners failed to show irreparable harm.
 
Judge Gibbons wrote a short concurring opinion, emphasizing “the limited role of the judiciary in this dispute about pandemic policy.”
 
In her dissenting opinion, Judge Larsen wrote that she would deny the government’s motion to deny the stay because OSHA exceeded its statutory authority in issuing the ETS, including because the ETS was not “necessary” within the meaning of 29 U.S.C. § 655(c)(1) and because there were “significant concerns with OSHA’s determination that all unvaccinated employees face grave danger from exposure to the virus in the workplace.” She invoked the major questions doctrine, and further wrote that other factors favored a stay of the ETS, such as irreparable harm.
 
On December 18, 2021, OSHA issued a statement about the decision, noting that “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the ETS, 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.”
 
On December 18 and again on December 20, 2021, various petitioners filed emergency applications for an injunction to Justice Brett Kavanaugh of the Supreme Court of the United States, the Circuit Justice for the Sixth Circuit, asking for a stay of the ETS pending further judicial review. Justice Kavanaugh directed the government to respond to the applications by December 30, 2021.
 
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On November 4, 2021, OSHA released an ETS requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. Our blog post on the ETS is here.
 
Lawsuits challenging the legal authority of the ETS were filed immediately. Under the Occupational Safety and Health Act of 1970 (“OSH Act”), anyone “adversely affected” by an ETS issued by OSHA may challenge it within 60 days in the appropriate federal appeals court. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS, pending briefing and expedited judicial review.
 
On November 12, 2021, the Fifth Circuit reaffirmed its stay in a 22-page opinion, determining that the petitioners had demonstrated the required elements for a stay pending judicial review, as set forth below. The Court further ordered OSHA to “take no steps to implement or enforce the [ETS] until further court order.”
 
First, the Court held that the petitioners’ challenges to the ETS “show a great likelihood of success on the merits.” The Court held that the promulgation of the ETS “grossly exceeds OSHA’s statutory authority” under 29 U.S.C. § 655(c)(1), which authorizes OSHA to issue an ETS and bypass the period of public notice and comment only if the agency determines that: (a) employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards;” and (b) the ETS is “necessary to protect employees from such danger.” The Court determined that OSHA, for various reasons, has not demonstrated that the ETS meets the requirements of § 655(c)(1). The Court further noted that the ETS “raises serious constitutional concerns,” including that “it likely exceeds the federal government’s authority under the Commerce Clause” and implicates separation of powers principles because there is “no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority.” The Court also noted that the ETS was both improperly over-inclusive (because it covers employees with little-to-no risk of exposure to COVID-19) and improperly under-inclusive (because it does not cover employees who work for companies with fewer than 100 employees).
 
Second, the Court determined that denying a stay would cause irreparable harm to petitioners. Specifically, the Court noted that the ETS substantially burdens the liberty interests of covered employees who do not want to receive the COVID-19 vaccine, imposes non-recoverable compliance and other costs on covered employers, and infringes on the States’ police power over public health policy.
 
Third, the Court held that granting a stay would not harm OSHA, including because “[a]ny interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate.”
 
Fourth, the Court held that granting a stay is in the public interest, not only because the ETS causes “economic upheaval,” but also because the ETS raises constitutional questions and threatens individual liberty.
 
Judge Duncan wrote a concurring opinion emphasizing that OSHA does not have statutory authority to issue the ETS.
 
Numerous other petitioners have challenged the ETS in other federal appeals courts. It is expected that all legal challenges will be consolidated this week before one federal appeals court, and that federal appeals court will decide petitioners’ motions for a permanent injunction against the ETS.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.