Sixth Circuit Revival of Vaccine Mandate Puts January 10, 2022 Compliance Deadline on Private Employers
The U.S. Court of Appeals for the Sixth Circuit has revived a rule from the Occupational Safety and Health Administration (OSHA) requiring American businesses with at least 100 workers to require their employees to get vaccinated or submit to weekly testing and mask mandates. This ruling lifts the nation-wide stay previously issued by the U.S. Court of Appeals for the Fifth Circuit. Unless the U.S. Supreme Court intervenes, covered employers will now be obligated to comply with the amended deadline of January 10, 2022, with penalties for failing to regularly test unvaccinated employees taking effect February 9, 2022.
On September 9, 2021, President Biden released a document entitled the Path Out of the Pandemic, his administration’s broad sweeping COVID-19 Action Plan. The Action Plan contemplates mandates requiring federal employees, federal contractors, certain healthcare workers and employees working for private employers with 100 or more employees to become vaccinated against COVID-19 or submit to weekly testing, and calls for large entertainment venues to require proof of vaccination or testing before admitting patrons.
For the private sector, the Action Plan instructed OSHA to develop an Emergency Temporary Standard (ETS) implementing the Plan’s vaccination, testing, and masking directives, while requiring covered employers to provide employees with paid time off to get vaccinated and recover from any side effects associated with receiving the COVID-19 vaccine.
OSHA issued its highly anticipated ETS eight weeks later, publishing the interim final rule in the Federal Register on November 5, 2021. OSHA, which enforces workplace safety requirements, issued this final rule pursuant to its emergency powers, allowing the agency to bypass the normal rulemaking process, which can take years. To constitute an emergency, the Labor Secretary must determine the fast-tracked standard is “necessary” to protect workers from a “grave danger.”
On November 6, 2021, just one day after OSHA published the emergency rule, the Fifth Circuit issued a stay temporarily blocking the ETS’s effective date, commenting that the “mandate” raises “grave statutory and constitutional issues.” The Fifth Circuit reaffirmed that stay order on November 12, 2021.
In its ruling, the Fifth Circuit largely agreed with arguments raised in dozens of lawsuits filed around the country by Republican-led states, businesses, religious groups and some individuals. Those lawsuits chiefly argued that OSHA lacked the statutory authority to regulate society-wide health issues that extend beyond the workplace and had failed to demonstrate that the COVID-19 pandemic presented a “grave danger” to workers.
After the Fifth Circuit’s decision, on November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions filed with the circuit courts of appeals seeking review of the ETS, including the Fifth Circuit’s ruling, placing the issue before the Sixth Circuit through random lottery selection.
On November 23, 2021, OSHA filed a motion asking the Sixth Circuit to lift the stay issued by the Fifth Circuit. A three-judge panel of the Sixth Circuit considered OSHA’s motion, resulting in a split decision lifting the stay.
All three judges on the Sixth Circuit panel wrote a separate opinion, with the majority concluding that OSHA had “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces,” that regulating an “agent that causes bodily harm”—including a virus—falls squarely within OSHA’s rulemaking authority, and noting that “Congress expressly included funding for OSHA in the American Rescue Plan that is to be used ‘to carry out COVID-19 related worker protection activities.’”
"Fundamentally,” Judge Jane B. Stranch wrote for the majority, “the [rule] 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.”
The lone dissent largely echoed the Fifth Circuit’s reasoning, concluding that OSHA could not offer a sufficient showing that COVID-19 posed a “grave danger” to the American workplace, and that because “Congress has clearly marked the perimeter of OSHA’s authority: the workplace walls,” OSHA had exceeded the scope of its authority.
Several petitions seeking an emergency stay from the U.S. Supreme Court hit the high court’s docket within hours of the Sixth Circuit’s order. Justice Kavanaugh, who oversees the Sixth Circuit, has the authority to grant the petitioners’ applications and stay the ETS pending review by the full Court or refer the applications to the full Court for a decision. Justice Kavanaugh could likewise take no action, allowing the compliance deadlines to take effect before the full Court has the opportunity to weigh in.
In the meantime, OSHA has issued amended compliance dates. The now-reinstated ETS requires covered employers with 100 or more employees to determine and document the vaccination status of each of its employees, provide specific information about the available vaccines, and develop and implement written policies describing OSHA’s vaccination, testing and masking requirements by January 10, 2022. OSHA announced, however, that it would not issue citations for noncompliance with the testing requirement before February 9, 2022 “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the rule.
The Biden administration’s parallel attempts to require vaccines for healthcare workers and federal contractors are both currently tied up in litigation. The mandate for federal contractors remains blocked nationwide, while the mandate covering healthcare workers at facilities that receive Medicaid or Medicare funding remains blocked in about half the states. Many believe those cases will also make their way to the U.S. Supreme Court.
For now, the requirement that private companies with 100 employees or more comply with the ETS remains in effect. Please contact Stephanie Poucher or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.
