OSHA ETS Heads to Sixth Circuit

On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow.

Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:

  • The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
  • The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
  • The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

The emergency motion remains pending. For now, the OSHA ETS remains stayed.

The Sixth Circuit’s composition has changed over the last years. The current balance of the active judges on the court now favors Republican nominees, 10-6. The Sixth Circuit will hear arguments and decide the case on the merits, initially as a randomly selected three-judge panel and, possibly, again en banc during which all the judges within the circuit participate in the appeal. Both sides in the litigation and the Sixth Circuit itself will likely favor an expedited briefing schedule. Any subsequent review would be limited to the United States Supreme Court. The need to review this issue on an expedited basis may become acute if there continues to be a large spike in reported cases this winter.

Employers should continue to monitor litigation developments and prepare for the possibility that the OSHA ETS may go into effect with very little notice. Federal contractors and subcontractors of healthcare employers should continue to comply with their separate federal COVID-19 requirements, which have not been stayed in the OSHA ETS litigation. However, these entities should be aware that some state laws restrict the mandates and that litigation may be pending regarding whether the OSHA ETS preempts these laws.

One issue that is still up in the air is how employers in states that have outlawed mandatory vaccine policies should handle the clear contradiction between the state law and OHSA’s ETS mandate requiring vaccines or regular testing. It appears to us that while employers should clearly prepare for the ETS which may very well be enforced at some point in the future, they need to also take into account state law while the ETS is stayed. One thing is clear: the only clarity on the issue will likely come from the Supreme Court, if and when they rule on enforcement of the ETS. If this issue is not clarified there will be a host of contradictory rules and laws impacting employers and employees, likely based on where an employee works.