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On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit's nationwide stay of the US Occupational Safety and Health Administration's (OSHA) “vax or test” Emergency Temporary Standard (ETS), which applies to US employers with 100 or more employees. As we explained in a prior Legal Update, under the ETS, employers must have either a mandatory-vaccination policy or a vaccination-or-test policy for their employees. This Legal Update addresses three issues: (1) current compliance requirements for employers; (2) the status and timing of the ongoing litigation; and (3) the main arguments being made in the litigation.
I. The ETS requirements have been revived, but OSHA has temporarily delayed enforcement of them.
On December 17, 2021, the same day that the Sixth Circuit lifted the stay, OSHA announced that it had adjusted the deadlines for employers to comply with the requirements of the ETS. Specifically, OSHA explained that it was “exercising enforcement discretion with respect to the compliance dates of the ETS” to account for the prior stay by the Fifth Circuit. The ETS's requirements now go into effect January 10, 2022, except for the requirement to test unvaccinated employees, which goes into effect February 9, 2022. OSHA explained that to “provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard's testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA also added that it “will work closely with the regulated community to provide compliance assistance.”
In a prior Legal Update, we discussed the ETS's specific requirements for employers. Those requirements are once more in effect, subject to the new January 10 and February 9, 2022, deadlines. The ETS still presents a number of challenges for covered employers, even those that have already implemented mandatory vaccination policies. In light of the Sixth Circuit's decision, employers should promptly take steps to comply with the ETS's requirements by OSHA's January 10 implementation deadline (and, as applicable, with the ETS's weekly-testing requirement by the February 9 deadline). Doing so will help demonstrate that employers are exercising reasonable, good-faith efforts to comply with the various requirements of the ETS and guard against potential fines by OSHA. The steps employers should take promptly include, at a minimum: (1) gathering and maintaining employees' vaccination status; (2) establishing, drafting, communicating and implementing a written policy on vaccination; (3) providing time off, as needed, for employees to get vaccinated; (4) providing employees with several categories of OSHA-required information related to the ETS; and (5) making certain statistical information related to vaccination in the workplace available to employees.
Employers should also be mindful that, in the past week, the Equal Employment Opportunity Commission (EEOC) supplemented its COVID-19 technical guidance by explaining that COVID-19 may qualify as a disability under the Americans with Disabilities Act (ADA). The EEOC highlighted the following points in its supplemental guidance:
– In certain cases, an applicant's or employee's COVID-19 may cause impairments that are themselves disabilities under the ADA, whether or not the initial case of COVID-19 was an actual disability.
– An applicant or employee whose COVID-19 produces mild symptoms that resolve in a few weeks—with no other consequences—will not have a disability under the ADA that would make the individual eligible to receive a reasonable accommodation.
– An applicant or employee with a disability is not automatically entitled to a reasonable accommodation under the ADA. Such individuals are entitled to a reasonable accommodation when their disability requires it, and the accommodation does not create an undue hardship for the employer.
– An employer risks violating the ADA by relying on myths, fears or stereotypes about a medical condition and preventing an employee's return to work once the employee is no longer infectious and, therefore, able to return without posing a direct threat to others in the workplace.
Employers should review the EEOC supplemental guidance and consider it carefully when implementing and enforcing mandatory vaccination policies because disability-related accommodation issues continue to arise in a variety of contexts as the pandemic rages on.
As discussed below, various parties that have challenged the ETS have asked the Supreme Court to reverse the Sixth Circuit and stay enforcement of the ETA. But employers who simply wait to see how all of the pending litigation ultimately plays out run the risk of incurring potential monetary penalties by OSHA and facing other challenges if they are unprepared to comply with the ETS when the January 10 deadline arrives.
II. The challengers have asked the Supreme Court to stay enforcement of the ETS.
After OSHA finalized the ETS on November 4, 2021, challengers sued in several courts of appeals to prevent OSHA from enforcing it. One of those courts, the Fifth Circuit, stayed enforcement of the ETS nationwide. After the stay was imposed, the Judicial Panel on Multidistrict Litigation consolidated all of the challenges to the ETS in the Sixth Circuit. In the Sixth Circuit, the challengers moved for initial en banc (full court) review of the ETS, and the government moved to lift the Fifth Circuit's stay.
On December 15, 2021, the Sixth Circuit in an 8-8 vote denied the challengers' request for initial en banc review. On December 17, 2021, a Sixth Circuit panel in a 2-1 vote dissolved the Fifth Circuit's nationwide stay.
The same day that the Sixth Circuit lifted the stay, the challengers asked the Supreme Court to intervene to stay enforcement of the ETS. They alternatively asked the Supreme Court to grant certiorari before judgment, i.e., to hear the case on the merits even before the Sixth Circuit does so. Below is an analysis of what we expect will happen next. The bottom line is that we think this case will move quickly in the Supreme Court.
– The petitioners have asked the Supreme Court to stay enforcement of the ETS or to grant certiorari before judgment.
The Supreme Court has asked the government to respond to the challengers' filings by December 30, 2021. Once the government files its response, we expect the Supreme Court to decide quickly whether to impose a stay and/or grant certiorari to decide the merits.
– The parties will also litigate the merits, either in the Sixth Circuit or the Supreme Court.
III. On the merits, the challengers are arguing that the ETS exceeds OSHA's statutory authority, is arbitrary and capricious, and is unconstitutional.
In challenging the ETS, the challengers have made four primary arguments. A brief analysis of the arguments is provided below.
1. Did OSHA exceed its authority under the Occupational Safety and Health Act?
The challengers' main argument is that the ETS is beyond the scope of OSHA's statutory authority. The Occupational Safety and Health Act of 1970 gives OSHA authority to issue emergency temporary standards if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and the ETS is “necessary to protect employees from such danger.” 28 U.S.C. § 655(c)(1). The ETS mandates that employers require vaccination or offer their employees the option to mask and test.
2. Is the ETS arbitrary and capricious?
The challengers argue that the ETS is “arbitrary” and “capricious,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). To survive arbitrary-and-capricious review, OSHA must show that there was a reasonable basis for it to issue the ETS—i.e., that in exercising its authority under the Occupational Safety and Health Act, OSHA reasonably concluded that the ETS is “necessary” to protect employees from a “grave danger” posed by COVD-19. The challengers' argument has several parts:
3. Does the ETS violate the Religious Freedom Restoration Act?
A set of challengers is arguing that the ETS violates the Religious Freedom Restoration Act (RFRA). RFRA prohibits the government from enacting laws that “substantially burden a person's exercise of religion” unless it furthers a “compelling governmental interest” and is the “least restrictive means” of doing so. 42 U.S.C. 2000bb-1. The ETS allows companies to exempt employees from the vaccination requirement based on their sincerely held religious beliefs and/or to make reasonable accommodations from COVID-19 testing for religious reasons.
The challengers say that this is insufficient, because having to ask if employees have a religious objection to vaccination, and tracking and reporting employees' answers, substantially burdens the challengers' exercise of religion. The government's stay brief in the Sixth Circuit did not respond to the challengers' RFRA argument, and the Sixth Circuit did not address it.
4. Is the ETS unconstitutional because it violates the Commerce Clause or the non-delegation doctrine?
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