Last Updated on December 22, 2021

How Judges Concluded that OSHA Did Not Exceed Its Authority in Issuing ETS

A three-judge panel of the Sixth Circuit, in a 2-1 decision, granted the Biden administration’s request to dissolve the Fifth Circuit’s stay on OSHA’s ETS on December 17, 2021. The panel included Judge Jane B. Stanch, Judge Julia Smith Gibbons, and Judge Joan Larsen, who issued a dissenting opinion. The opinion was authored by Judge Stanch. The panel determined that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” 

The panel found that the injuries asserted by the petitioners are “entirely speculative.” They also found the costs of delaying implementation of the ETS are comparatively high. The panel also concluded that OSHA did not exceed its administrative authority in issuing the ETS.

Interpreting OSHA’s limited grant of administrative authority to address HIV and blood-borne pathogens to mean that OSHA also has authority to regulate other viruses, like COVID, the panel found that “[g]iven OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace. Indeed, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace.”

“[g]iven OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.”

How Employers Should Prepare For A New Deadline Of January 10, 2022

The Sixth Circuit panel stated that it would not “second guess what [OSHA] considers a ‘risk worthy of Agency action’ because that ‘is a policy consideration that belongs, in the first instance to [OSHA].'” The Sixth Circuit panel did not address how its decision would impact the timing of the ETS’s vaccination and testing and requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022, respectively. However, shortly after the Sixth Circuit issued its decision, OSHA issued updated guidance providing that covered employers must be in compliance with the vast majority of the ETS no later than January 10, 2022 (as opposed to the original deadline of December 6, 2021).

Accordingly, by January 10, 2022, employers subject to the ETS will need to:

• have determined the vaccination status of their employees;
• start providing the ETS-required support for employee vaccination;
• start/continue requiring that unvaccinated employees wear face coverings in the workplace;
• institute the written vaccination/testing policy required by the ETS; and
• start/continue requiring employees to promptly inform them of any COVID-19 diagnosis or positive test result, among other obligations.

Testing Option to Unvaccinated Employees Begins February 2, 2022

In addition, employers that choose to provide the testing option to unvaccinated employees (as opposed to mandating vaccination) must begin weekly testing in compliance with the specifics of the ETS no later than February 9, 2022. Immediately following the Sixth Circuit’s decision, several petitioners filed an emergency applications with the United States Supreme Court requesting a stay of the Sixth Circuit’s order dissolving the Fifth Circuit’s stay of the ETS and seeking to reinstate the stay of the ETS pending judicial review by the Supreme Court.

The Supreme Court has docketed the emergency applications, and Justice Kavanaugh, as the circuit justice for the Sixth Circuit, has directed that responses to the emergency applications be filed by Thursday, December 30, 2021. Although it is free to do so, it is unlikely that the Supreme Court will rule on any of the emergency applications before this response deadline.

Current Guidance for Employers with 100 or More Employees

For now, private employers with 100 or more employees should begin taking steps to comply with the provisions of the ETS.

Source: Baker Donaldson

Contact MyHRConcierge for COVID-19 Related Human Resources Guidance

MyHRConcierge offers human resources consulting services to businesses regarding COVID-19 rules and regulations. For assistance with this or any other workplace issue, please contact MyHRC by phone at 1-855-538-6947 x.108 or email ccooley@myhrconcierge.com.