As noted in our last client alert regarding the status of OSHA’s Emergency Temporary Standard (“ETS”), found here, the Sixth Circuit was designated to review all challenges to the ETS.  On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s nationwide injunction. A copy of the opinion can be found here.  The U.S. Supreme Court will hold a special hearing in January to review Biden’s mandates.

The Court rejected the argument that the ETS was not necessary because it is both over-inclusive and under-inclusive.  OSHA was  afforded substantial discretion  to err on the side of over protection rather than under protection when promulgating the ETS, and would not be expected to do workplace by workplace assessments.   Any other result would belie the whole point of an emergency temporary standard, which requires quick action.  Even though the ETS imposed requirements on workers who are not as high risk as others, the ETS was promulgated to prevent transmission of the virus, which is not age dependent.  The court also held that the ETS was not under-inclusive insofar as it does not apply to employers with less than 100 employees,  because OSHA had demonstrated that selecting larger employers means that the ETS reaches enough workers to make a meaningful difference in mitigating the risk of COVID-19. 

The Sixth Circuit Court further ruled that OSHA was not required to make findings of exposure of COVID-19 in all workplaces for it to constitute a grave danger.  Otherwise, no hazard could ever rise to the level of grave danger because a risk cannot exist equally in every workplace.  Among other reasons, COVID-19 presented a grave danger because OSHA estimated that the ETS would save 6,500 worker lives and prevent over 250,000 hospitalizations over the course of six months.  Finally, even though COVID-19 exists outside the workplace, the Sixth Circuit pointed out that OSHA routinely regulates hazards that exist both inside and outside of the workplace. 

Lastly, the Sixth Circuit found that none of the Petitioners could demonstrate irreparable harm if the ETS were enforced.  According to the Court, the costs of delaying implementation were too high, and the court  considered the ETS to be a fundamentally “important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”

Bottom Line:  In light of the Sixth Circuit’s decision, OSHA has announced that it will not issue citations for noncompliance with any of the 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 comply with the standard.  OSHA has not provided any guidance as to how an employer can show its “good faith efforts.”  The U.S. Supreme Court, however, recently has agreed to hear oral argument on challenges to the ETS in a special session on January 7.  Thus,  the ETS’s fate remains uncertain.  Copies of the U.S. Supreme Court orders can be found here and here

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