In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

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The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing most of the Emergency Temporary Standard for healthcare employers (Healthcare ETS) it promulgated more than six months ago.

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More than six months after the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary Standard for healthcare employers (Healthcare ETS), OSHA announced its intentions to propose an infectious diseases standard covering all industry sectors in April 2022. The agency said the new standard will address airborne, droplet, and non-bloodborne contact diseases.

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The U.S. Supreme Court has scheduled expedited arguments on the  U.S. Court of Appeals for the Sixth Circuit’s decision to lift the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

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The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.

In an opinion authored by Judge Jane B. Stanch, a three-judge panel determined in a 2-1 vote that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Stanch was appointed to the bench by President Barack Obama. She was joined by Judge Julia Smith Gibbons, an appointee of President George W. Bush. Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting that employees are exposed to COVID-19 even while not working and OSHA had not established that there was “grave danger” in the workplace or that the ETS requirements would correct that.

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The ETS includes face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status roster, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records and certain employee communications about the employer’s policies and vaccine information from the CDC. Covered employers will need to decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy. Covered employers implementing a mandatory vaccination plan still must comply with all other requirements, such as weekly testing for employees who are excused from the mandate as a reasonable accommodation.

None of the 22 approved State Plans, including Puerto Rico, covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. (Uniquely, although Puerto Rico has an OSHA State plan,  the governor has already mandated employers with 50 or more employees implement a mandatory vaccination policy, a measure arguably equally or more effective than the ETS. Thus, Puerto Rico’s State Plan OSHA may not need to implement the OSHA ETS). In addition, California’s Cal/OSHA has approved revisions to the state’s existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS.  It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for  OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement delays.

Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer’s ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS’s mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption. Significantly, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements. Some of these states are OSHA State Plans and some are actually federal OSHA jurisdictions, creating additional compliance confusion.

Several petitioners have already appealed to the U.S. Supreme Court to stay enforcement of the ETS, emphasizing the irreparable harm they will suffer in having to implement the ETS and providing supporting witness declarations. They continue to argue irreparable harm based on labor shortages, the unavailability of tests and unintended — and ironically — consequences of laying off vaccinated workers to financially support compliance. In addition to the challengers’ concerns about the economic viability of their businesses, they argue their likelihood of success in enjoining the standard on the merits and balance of equities weighing in favor of a stay.

Emergency appeals, such as the request for a stay of a ruling by a Circuit Court, go directly to a justice assigned to that Circuit — in this case, to Justice Brett Kavanaugh, who is assigned to the Sixth Circuit. The assigned justice may distribute the application to the full court to consider or decide the request on their own. Just a few months ago, Justice Amy Coney Barrett rejected an emergency request made by a group of Indiana University students who sought to block enforcement of the school’s vaccine mandate after the Seventh Circuit refused to enjoin the mandate. Justice Barrett did not refer the emergency application to the full Supreme Court and did not provide an explanation in the denial of the petitioners’ request.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

If President Joe Biden’s Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) vaccine or testing mandate for employers goes forward, nearly half the states have the option of going their own way.

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In what is getting to be habit in the OSHA ETS litigation with courts issuing orders late Friday afternoons, the Sixth Circuit on December 3, 2021 tersely denied a petition to transfer the case back to the Fifth Circuit.  In the same order, the Sixth Circuit also denied, without explanation, the union petitioners’ bid to transfer the case to the D.C. Circuit where there is pending litigation of the OSHA Healthcare ETS issued in June 2020.

The order perfunctorily addressed several pending motions on the docket, including OSHA’s motion for an expedited briefing schedule, which would have set the close of briefing on the merits for December 29, 2021 with oral argument held as soon as practicable thereafter.  In denying the motion, the Sixth Circuit stated little more than it was reserving judgment on setting a merits briefing schedule.  Obviously, there are a tremendous number of parties with varied interests and a multitude of legal arguments both statutory and Constitutional, which the court clearly recognizes are at play and likely require a schedule that is not rushed.

The next big issue for the court to tackle will be OSHA’s motion to dissolve the stay with the close of briefing just a week away on December 10, 2021.  Whether the court will dole out more good news for employers, states, and other challengers to the ETS for the holiday season is anybody’s guess, but a decision before the holidays seems imminent.

At Jackson Lewis, we are closely monitoring the ETS litigation and will provide updates on important developments.  Please reach out to the Workplace Safety and Health Practice Group or our COVID-19 Team if you have any compliance questions.

 

As the OSHA COVID ETS saga continues to unfold, several union groups have filed a motion requesting that the 6th Circuit transfer all of the consolidated petitions to the D.C. Circuit, arguing that the D.C. Circuit is better equipped to handle the matter.  The United Food and Commercial Workers International Union, AFL/CIO-CLC and the American Federation of Labor-Congress of Industrial Organizations (“Unions”) requested that the court transfer the case to the D.C. Circuit because the D.C. Circuit handled the Unions’ litigation to compel OSHA to promulgate an ETS for COVID-19 in 2019.  The D.C. Circuit also adjudicated the United Mine Workers of America’s writ of mandamus seeking to compel the Mine Safety and Health Administration (MSHA) to issue an ETS for infectious diseases.  The Unions also point out that they petitioned for review of OSHA’s healthcare ETS issued on June 21, 2021, claiming it was too narrow, and that action is still pending before the D.C. Circuit. The Unions argue transfer is appropriate because the D.C. Circuit is the only court where petitioners on both sides of the ETS filed petitions for review, the government is located, and many lawyers representing various petitioners are located.  The Unions further argue that the D.C. Circuit hears more agency challenges and specifically challenges to OSHA rulemaking than any other Circuit.  As a result, they believe the D.C. Circuit has expertise in adjudicating complex administrative law cases, which make up a disproportionate share of its docket.  The Unions also argue that a transfer would foster judicial economy because there could be natural overlap between the issues pending before the D.C. Circuit in the challenge to the healthcare ETS.  Last week, several petitioners opposing the ETS moved to transfer the case back to the 5th Circuit.

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Meanwhile, the government has opposed the motions for the 6th Circuit to review the case en banc with all sixteen active judges.  The government argues that an en banc hearing of the case would unduly delay adjudication of the merits and the exigent circumstances and grave danger requiring an ETS in the counsel against such delay.  The government also argues that there is no inter-circuit or intra-circuit split requiring the extraordinary and rarely used procedure to have the case heard en banc at this point in the proceedings.  In making this argument, the government notes that the ETS challengers claim that there is binding 6th Circuit and Supreme Court (referring to the CDC eviction moratorium litigations) which control the case and which they are not seeking to overturn.  Therefore, the case should follow the normal procedures and be reviewed by a three-judge panel.

If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.

Four separate groups of petitioners challenging the OSHA ETS, including a coalition of 27 states, have asked the court to hear the OSHA challenge en banc, arguing that the case involves a question of exceptional importance in that it is an “unprecedented mandate of COVID vaccines based on a rarely used law of questionable applicability.” Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, U.S. Dep’t of Labor, Docket 21-4027, Docket Entry [32], p. 3 (6th Cir.).

Federal appellate cases are normally heard by a 3-judge panel selected at random.  Before appealing to the U.S. Supreme Court, the losing side may then petition for rehearing en banc, meaning that all of the active circuit judges would review the case and a majority of those could overturn or affirm the decision of the 3-judge panel.

Rule 35 of the Federal Rules of Appellate Procedure allows parties to request that the circuit bypass the normal 3-judge panel and have the case initially heard by all the active judges where the case “involves a question of exceptional importance.”  The petitioners argue that the OSHA ETS involves important constitutional questions about appropriate delegation of authority to OSHA, the Commerce Clause, and state versus federal powers under the 10th Amendment to the U.S. Constitution.  The answers to these questions will affect about 80 million people in this country and their right to make personal healthcare decisions.  Petitioners also argue that having the case heard en banc will promote judicial efficiency because the decision of the 3-judge panel would likely result in a request for a rehearing en banc anyway.  The OSHA ETS is hotly contested and politically charged, as evidenced by the various petitioners on both sides of the issue which have filed 34 petitions to review the ETS in 12 federal judicial circuits.

The government has until November 30, 2021 to file one consolidated response to all the petitions for the case to be heard en banc.

If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.