On November 5, 2021, the Occupational Safety & Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to take certain actions to minimize the spread of COVID-19 in their workplaces. Enforcement of the ETS was initially set to begin on January 4, 2022. Although often referred to as a “vaccine mandate,” the ETS did not actually require employers to mandate the vaccine. Rather, it gave covered employers the option to require unvaccinated employees to undergo weekly COVID-19 testing and wear a mask when on site. Covered employers also had the option to allow unvaccinated employees to work remotely.
Unsurprisingly, the ETS was immediately challenged by a bevy of employers, private citizens, and conservative states and organizations. The day after the ETS was issued, the Fifth Circuit issued a stay barring OSHA from enforcing it pending further judicial review. The next week, the Fifth Circuit issued a written opinion reaffirming the stay. Similar lawsuits were brought in other jurisdictions across the country. The petitions were consolidated into a single circuit and, on November 16, the U.S. Court of Appeals for the Sixth Circuit was designated to review them.
In a 2-1 decision issued on December 16, the Sixth Circuit reinstated the ETS. In reaching that decision, the court acknowledged that OSHA has authority to issue an ETS if it determined that (i) employees are being exposed to grave danger from substances or agents, and (ii) an ETS is necessary to protect them from that danger. OSHA found both of the foregoing to be true, and the court agreed with its finding. As a result of the Sixth Circuit’s decision, the stay of OSHA’s so-called “vaccine mandate” has been dissolved, and covered employers are, once again, expected to comply with the ETS.
Following the Sixth Circuit’s decision, OSHA announced that it would not begin enforcing the ETS until January 10 – six days after the original enforcement date. It will not issue citations for noncompliance with the ETS’ testing requirements until February 9, so long as the employer in question is exercising reasonable, good faith efforts to bring itself into compliance with the ETS.
An application to stay the Sixth Circuit’s decision has already been filed with the Supreme Court, and it is widely expected that the Supreme Court will take the issue up on review. In the meantime, employers with 100 or more employees must craft policies to ensure compliance with the ETS and implement those policies before the January 10 enforcement date.
In a 6-3 per curiam decision issued on January 13, 2022, the Supreme Court ruled that the
applicants were likely to succeed on the merits and granted emergency relief staying OSHA’s
mandate. “Although Congress has indisputably given OSHA the power to regulate occupational
dangers,” the Court held, “it has not given that agency the power to regulate public health
more broadly.” The Court found that the vaccine mandate fell within the latter category.
The Occupational Safety and Health Act (the “Act”) carves out a narrow exception to the
standard notice-and-comment procedure for emergency temporary standards. However, it
applies only where: (1) employees are exposed to grave danger from toxic or physically harmful
substances or agents; and (2) the ETS is necessary to protect employees from that danger. The
Court concluded that OSHA’s mandate was not sufficiently narrow to satisfy those
In reaching that conclusion, the Court emphasized that the Act only authorizes OSHA to
regulate occupational hazards. The Court found that COVID-19 is not an occupational hazard
because spreads in all places where people gather – not just workplaces. As such, the Court
opined, the risk of contracting COVID-19 more closely resembles the risk posed to all Americans
by air pollution or crime than the occupational risks OSHA is tasked with regulating.
In light of this ruling, covered employers need not comply with OSHA’s vaccine mandate at this
time. Importantly, however, the ruling does not apply to healthcare facilities that participate in
Medicare or Medicaid. In a separate ruling issued on the same day, the Supreme Court upheld
the Biden Administration’s vaccine mandate for healthcare workers employed at facilities that
receive federal funding from either of those programs.
This summary is not intended to contain legal advice or to be an exhaustive review. Employers with questions on how to craft and implement an ETS-compliant policy – and how to handle exemption and accommodation requests – should contact Erica L. Litovitz, Esq., John J. Matteo, Esq., or another member of Jackson & Campbell’s Employment Law Practice Group for more information.