OSHA’s COVID-19 Vaccination and Testing ETS Relaunched as Sixth Circuit Dissolves | Seyfarth Shaw LLP

Synopsis of Seyfarth: On December 17, 2021, a three-judge panel of the United States Court of Appeals for the Sixth Circuit dissolved its sister’s suspension from the Fifth Circuit of the Temporary Emergency Standard for COVID-vaccination and testing 19 of the Occupational Safety and Health Administration in an order 2-1. Shortly thereafter, OSHA updated its website indicating that it would exercise “discretion” by extending compliance deadlines and potentially offering enforcement relief to employers making efforts to ” good faith ‘to comply.

We previously published a legal update concerning the dazzling opinion of the Court of Appeals of the Fifth Circuit of the United States of November 12, 2021 extending its November 6 suspension of the Temporary Emergency Standard (“ETS”) of COVID-19 vaccination and testing of the Occupational Safety and Health Administration (“OSHA”).

Since the start of this stay, a lottery of November 16, 2021 of the Judicial College on multidistrict litigation consolidated OSHA’s various ETS legal challenges in the United States Court of Appeals for the Sixth Circuit. On Wednesday, December 15, a sixth circuit in equal parts refuse initial hearing requests in bench, indicating that a traditional panel of three judges would hear the ETS case. Chief Justice Jeffrey S. Sutton filed a lengthy dissent in court in bench denial, focusing primarily on the legal viability of the ETS and the reasons why the suspension should continue. Speculation suggesting Chief Justice Sutton read the tea leaves and knew the suspension would be lifted appears to have been confirmed by the order of Friday, December 17 of the three-judge panel lifting the suspension.

Writing for the majority, Justice Jane B. Stranch dissolved the stay of the Fifth Circuit, noting that “[i]In emergency circumstances, OSHA “shall” promulgate a “temporary emergency standard” that takes “immediate effect.”[t]The ETS does not force anyone to be vaccinated. Rather, the ETS allows covered employers – employers with 100 or more employees – to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplace. “Employers can choose to have workers who are not vaccinated to follow other risk mitigation protocols like masking and weekly testing, so it’s”[t]the employer – not OSHA – [that] may require its workers to be vaccinated.

Disagreeing with the Fifth Circuit, the Sixth Circuit asserted OSHA’s statutory authority to control infectious diseases, including those that are not specific to the workplace. In addition, the Sixth Circuit found the “doctrine of major issues.” . . inapplicable. . . because OSHA’s issuance of the ETS is not a huge expansion of its regulatory authority. Finding “no threshold issues that OSHA has exceeded its authority under the law,” the Sixth Circuit then assessed the legal challenges to the ETS, focusing on the legal requirements for OSHA to issue. and ETS, that is, OSHA must determine that a serious hazard exists and the ETS is necessary to protect workers from that hazard.

The Court determined that OSHA’s alleged delay in issuing its ETS “does not compromise the state of emergency presently presented by this unprecedented pandemic.” Referring to the standard’s long preamble, the Court held that “it is difficult to imagine what more OSHA could do or what could rely on to justify its conclusion that workers face a serious workplace hazard ”from COVID-19. On necessity, Stranch J. refuted the argument of some applicants that

the word “necessity” requires that the OSHA standard can use only the means that are absolutely necessary to suppress the serious danger. Taken seriously, such a narrow reading of the law would require OSHA to predict an emergency and design the most closely matched ETS to entirely eliminate the serious hazard from the workplace. But in virtually any emergency that would require an ETS, no precaution offered by OSHA could ever be 100 percent effective in quelling the emergency. The courts have recognized this practical reality, explaining that ETS standards can necessarily be somewhat general. . . . It cannot be expected that every procedure or practice will be strictly necessary for every substance, type of use or plant operation. OSHA need only demonstrate that its proposed solution is necessary to to relieve a serious risk of death of workers during [the ETS’s] six-month term. (internal quotes and quotation marks omitted)

The Court found that the applicants were unlikely to succeed with their constitutional arguments regarding the commerce clause and the doctrine of non-delegation. By dismissing the petitioners’ claims of irreparable harm (in part by reverting to the risk mitigation options available to employers under the HTA), the Sixth Circuit weighed the factors of irreparable harm in favor of the government and the public interest.

In response to the Sixth Circuit order, OSHA updated its ETS website:

OSHA is pleased that the United States Court of Appeals for the Sixth Circuit has dissolved the Fifth Circuit suspension of the Temporary Emergency Standard for Vaccination and Testing. OSHA can once again implement this vital occupational health standard, which will protect the health of workers by mitigating the unprecedented spread of the virus in the workplace.

To account for any uncertainty created by the suspension, OSHA exercises enforcement discretion with respect to ETS compliance dates. In order to give employers sufficient time to become compliant, OSHA will not issue citations for non-compliance with ETS requirements until January 10, and will not issue citations for non-compliance with requirements. test of the standard by February 9, as long as an employer exercises reasonable and good faith efforts to comply with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

The key to employer compliance efforts is that OSHA has effectively redefined the ETS compliance deadlines to January 10, 2022 (initially December 6, 2021) for the majority of ETS requirements, and to February 9, 2022. (originally Jan. 4, 2022) for employers to begin testing employees who are not fully vaccinated, to account for his period of stay.

Another difficulty for employers to consider is that immediately after the suspension was lifted, numerous emergency suspension applications were filed with the United States Supreme Court, where Justice Kavanaugh oversees the Sixth Circuit. . The petitioners ask that the Court reinstate a stay while the case on the merits progresses. Justice Kavanaugh will determine how and when this process will take place.

The Sixth Circuit order does not definitively resolve the pending legal challenges against the ETS, and the Sixth Circuit will continue to examine the merits of the standard. But with the ETS back in effect – at least for today – employers should strive to comply, reasonably and in good faith, by targeting the dates of January 10 and February 9 to meet the requirements of the ETS. Standard. Seyfarth has resources, like our compliance checklist, to help you reinvigorate your ETS-compliant policies.

Please contact your trusted Seyfarth lawyer to discuss OSHA’s evolving ETS status.


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