On November 12, 2021, the U.S. Fifth Circuit Court of Appeals ordered federal OSHA not to implement or enforce its COVID-19 (coronavirus) emergency temporary standard (ETS) until a full judicial hearing can be held. As we previously reported, OSHA published the ETS on November 5, 2021, requiring employers with 100 or more employees to ensure that their workers become vaccinated against COVID-19 or else wear masks and submit to weekly tests. Covered employers had until December 5, 2021, to comply with most of the rule, although January 4, 2022, was the deadline to begin weekly testing for unvaccinated employees. These deadlines are now on hold pending resolution of legal challenges (BST Holdings, L.L.C. et al vs. OSHA, 5th Cir, Nov. 2021).
What’s next: Similar lawsuits have been filed in most of the other federal courts of appeals. The Fifth Circuit was first out of the gate with its ruling (confirming a temporary stay it issued on November 6, 2021), but all of the cases will be consolidated with a lottery determining which court of appeals will manage all of the litigation nationwide. We expect the cases to be fast-tracked, possibly ending up before the U.S. Supreme Court.
Two other federal vaccine mandates are still moving forward: The Fifth Circuit’s ruling has no impact on the vaccine mandates for federal contractors (see our 9/28/2021 Alert and 11/4/2021 newsletter article) or for health care facilities that participate in the Medicare and Medicaid programs (see the Centers for Medicare and Medicaid Services (CMS) announcement of the CMS vaccine mandate). These employers all have the same January 4, 2022, vaccination deadline that OSHA announced in its ETS. That could change, however, because lawsuits are also pending for these two rules.
Why the court stayed the ETS: The Fifth Circuit cited numerous reasons for its ruling. Normally, federal agencies are required to go through a thoughtful notice-and-comment process before issuing a new regulation. However, a section in the Occupational Safety and Health Act (29 U.S.C. § 655(c)(1)) authorizes OSHA to issue an ETS instead if the agency “determines (A) that 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) that such emergency standard is necessary to protect employees from such danger.” It’s extremely difficult to meet this standard. The court said it’s unlikely that OSHA will succeed in its effort, so it’s best to keep the status quo in place until a full hearing can be held.
- The court questioned whether a virus qualifies as a toxic substance or agent (the terms used in the statute authorizing the agency to issue an ETS), since the virus circulates among the general population, isn’t limited to specific workplaces, and affects people differently (ranging from mild to catastrophic symptoms).
- The court said OSHA’s ETS is both overinclusive (by covering all industries and types of workplaces, regardless of the level of the hazard from COVID-19) and underinclusive (by leaving out workplaces with 99 or fewer workers, failing to prevent vaccinated employees from spreading the virus, and failing to prevent unvaccinated employees from spreading it between tests).
- The court felt the agency’s lack of urgency in issuing the ETS cut against its position that COVID-19 poses a workplace emergency. Under the Trump administration, OSHA determined in June 2020 (in response to a lawsuit) that it wasn’t necessary to issue a regulation. Under the Biden administration, OSHA finally published the ETS on November 5, 2021, but even then it wasn’t scheduled to fully take effect until January 4, 2022.
- The court also thought the agency failed to adequately explain its change in position. OSHA had previously said that issuing a general ETS could be counterproductive, enshrining protections in a regulation that later (as we learn more about COVID-19) turn out to be ineffective. At that time, OSHA had said that it was more effective to require employers to reduce or eliminate the hazard at their specific workplaces via compliance with the general duty clause.
- The court said when Congress wrote the Occupational Safety and Health Act, it delegated to federal OSHA the ability to establish workplace safety regulations, but the vaccine mandate goes far beyond that authorization. The court said the ETS “derives its authority from an old statute employed in a novel manner, imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues.”
- Even if Congress were to authorize OSHA to issue a vaccine mandate, the court questioned whether this would usurp the “police power” reserved to the states under the U.S. Constitution. This is the governmental power of the states to regulate behavior and enforce order within their borders.
Tips: While we wait for a final decision on OSHA’s ETS, covered employers can take basic steps, such as conducting a vaccination poll, to get a head start on compliance in case the ETS goes into effect or any states adopt similar rules. We’ll report on these recommendations in our November 18, 2021, newsletter.
Even if federal OSHA’s rule is eventually struck down, that may not stop a state safety and health agency from proceeding with its own vaccine mandate. States that have their own safety and health agencies, such as Arizona, California, Oregon, and Washington, have 30 days from the date OSHA issues an ETS to either accept OSHA’s rules or devise their own rules, which must be at least as protective as the federal standard. This timeline is up in the air now that OSHA’s ETS has been stayed by the Fifth Circuit. It’s possible (even likely) that these state safety and health agencies will wait to see what happens with the federal OSHA rule before taking any action. Vigilant will keep members posted on any significant developments with the OSHA ETS or state rulemaking on COVID-19 vaccination requirements.