Key Takeaways

• The Sixth Circuit has lifted a stay on the Biden administration’s vaccine mandate for large employers

• OSHA has indicated it will not issue citations for noncompliance with any requirements of  the ETS before January 10, 2022, and it will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022

• Emergency stay applications have already been filed with the U.S. Supreme Court

• Despite the uncertainty around the mandate, employers are advised to carefully consider details on internal policies that meet compliance

In November we reported the highly anticipated release of the OSHA ETS. Since then there has been a myriad of litigation challenging the ETS. The most recent news on the fate of the OSHA ETS occurred on Friday, December 17, 2021, when the Sixth Circuit Court of Appeals granted OSHA’s motion to dissolve the stay of ETS.

OSHA ETS Challenges

The OSHA ETS was released on November 4, 2021 and mandated that all private sector employers with 100 or more employees either (i) mandate vaccination of all employees, except when an employee is exempt as an accommodation, or (ii) implement a policy that requires unvaccinated employees to submit to weekly testing as well as wear a face covering while indoors or when occupying a vehicle with another person for work purposes.

Shortly after OSHA issued the ETS, private employers, labor unions, state governments, and individual citizens across the country filed suit in virtually every circuit court, challenging OSHA’s authority to issue such an ETS as well as OSHA’s basis for the ETS. One day after the ETS went into effect, the Fifth Circuit issued a stay barring OSHA from enforcing the ETS until the completion of judicial review. Less than a week later, the Fifth Circuit issued a written opinion, reaffirming the initial stay after “having conducted . . . [an] expedited review.”

In reaching its decision to stay the ETS, the Fifth Circuit stated that the ETS faced fatal statutory and constitutional issues, concluding that the ETS challengers had demonstrated a strong likelihood of success on their merits. On the other stay factors, the Fifth Circuit found that individuals, states, and employers would be “substantially burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into states’ “constitutionally reserved police power.” Without addressing any of OSHA’s factual explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public interest.”

The federal government notified the judicial panel on multidistrict litigation of petitions across multiple circuits, invoking the lottery procedure to consolidate all petitions in a single circuit. On November 16, 2021, the panel designated the U.S. Court of Appeals for the Sixth Circuit to review the petitions. On November 23, 2021, the federal government moved to dissolve the stay issued by the Fifth Circuit.

On December 17, 2021, the Sixth Circuit Court of Appeals granted OSHA’s motion to dissolve the stay of ETS, determining that the petitioners challenging the ETS did not have a strong likelihood of success on the merits of their claims and that they would not suffer irreparable harm if the stay is lifted.

The Sixth Circuit’s decision has already been appealed to the U.S. Supreme Court with Justice Brett Kavanaugh ordering briefs from the government by 4:00pm on December 30, 2021. Now that the stay is lifted, employers covered by the OSHA ETS may want to continue to prepare and work towards compliance. OSHA has also issued FAQs to help employers with compliance.  However, in response to the stay being lifted, OSHA has indicated that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and it will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

While the situation needs to be carefully considered, there is still much that is unknown, giving employers time to work on details. Employers can, and should, continue to develop internal policies that will comply with the ETS, such as recordkeeping, monitoring weekly testing, addressing medical/religious exemptions, and ensuring employee compliance, among others.

If the ETS stay is reinstated, compliance will not be necessary, but, if not, employers will need to be ready to comply.

Other Vaccine Mandates

Employers should not confuse this OSHA ETS with other COVID-19 mandates:

• Earlier this year New York issued a regulation requiring healthcare workers to receive a COVID-19 vaccine. While the regulation allows for medical exemptions, it does not allow for religious exemptions. The regulation was challenged in two separate lawsuits seeking a preliminary injunction preventing New York from enforcing the mandate, and in one suit the challengers’ requested relief was granted. However, the Second Circuit Court of Appeals issued a combined judgment rejecting all of the challengers’ claims and dissolving the preliminary injunction that was issued. Finally, on December 13, 2021, an appeal to the U.S. Supreme Court was denied. As a result, the regulation mandating COVID-19 vaccines for healthcare workers in New York remains intact.
• At the federal level, the Centers for Medicare & Medicaid Services (CMS) issued its own COVID-19 vaccine mandate, which applies to the staff of many Medicare- and Medicaid-certified providers such as hospitals, long-term care facilities, home-health agencies, and hospices. On November 29, 2021, a federal court in Missouri halted the CMS rule in 10 states. On November 30, 2021, a federal court in Louisiana issued a nationwide injunction purporting to enjoin the CMS rule for the rest of the country. The government sought review of the nationwide injunction. On December 15, 2021, the Fifth Circuit Court of Appeals issued its opinion partially upholding and partially reversing the district court’s injunction. The court ruled that the government is likely to prevail on limiting the scope of the nationwide injunction, thus, it “stayed” the injunction with respect to jurisdictions outside of the 14 states included in the lawsuit. As a result, although the CMS rule is still on hold in the 14 states that brought the lawsuit in Louisiana, and in the 10 states that are part of the Missouri lawsuit, for everywhere else, the injunction has been lifted.
• Federal contractors and subcontractors are also affected by COVID-19 mandates. On November 30, 2021, a federal district court in Kentucky temporarily blocked a directive for contractors which applied only to Kentucky, Ohio, and Tennessee. On December 7, 2021, a federal district court in Georgia temporarily blocked the requirement nationwide. The Eleventh Circuit Court of Appeals has denied the Administration’s request to immediately lift the nationwide injunction on the federal contractor vaccine mandate. In response, the Office of Management and Budget issued updated guidance which states, “[t]he Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency.”
• Local municipalities are also issuing vaccine mandates. By an order from the New York City health commissioner, all private sector employers in New York City need to require proof of vaccination from all workers entering the workplace starting on December 27, 2021. On December 15, 2021, guidance and FAQs were released. Given that New York City Mayor Bill de Blasio will be leaving office at the end of 2021, it remains to be seen what New York City Mayor-Elect Eric Leroy Adams will do in regards to this mandate when he assumes office on January 1, 2022.
• In addition to various employee vaccine mandates, other measures continue to be taken at the federal, state, and local levels. For example, on December 2, 2021, President Biden announced a winter COVID-19 protection plan. States also continue to take their own measures. On December 10, 2021, for example, New York Gov. Kathy Hochul announced a mandate for business to either require all patrons to be vaccinated or to have all patrons wear a mask. This measure was further corroborated by an order from New York’s commissioner of health. Additionally, on December 15, 2021 the New York Department of Health extended employer obligations to comply with the NY HERO act through January 15, 2022. Finally, New York City has also implemented the Key to NYC which requires certain businesses to require employees and patrons to be vaccinated to enter indoor establishments.

With employer obligations seemingly changing by the day, businesses should be in regular contact with counsel to ensure compliance.

For more information or immediate guidance on how this impacts your business, contact:

• Christopher P. Maugans
• Michael Rubin
• Stefan A. Borovina
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Or another member of the Employment and Labor practice group