In our last alert, we discussed the Sixth Circuit dissolving the Fifth Circuit’s nationwide injunction on OSHA’s Emergency Temporary Standard (“ETS”) and that the Supreme Court (“the Court”) would be holding a special hearing to review the Sixth Circuit’s decision.
On January 13, 2022, the Court issued a decision on the matter and reinstated the injunction on implementing and enforcing the ETS. The decision can be found here. Essentially the Court found OSHA exceeded its authority in implementing the ETS and the challengers of the ETS were likely to succeed on the merits of their claims. It is important to note, however, that the Court’s Order is not a final determination. The case has been sent back to the Sixth Circuit, and that court will actually hear the case on the merits. Depending on the Sixth Circuit’s ruling, there may be another appeal to the Supreme Court. But given the nature of the Court’s opinion, it is likely that the ETS in this form will not survive review. A summary of the Court’s decision is below.
Summary of the Opinion
The Court found OSHA greatly exceeded its authority in mandating the ETS. It emphasized OSHA has the power to set workplace standards and not enact public health measures. The ETS’s application to 84 million Americans simply because they work for employers with 100 or more employees constituted an impermissible public health measure. It reasoned, “COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard…[it] can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” Additionally, the Court highlighted that the lack of legislative support from Congress along with the scant precedent of OSHA enacting a measure of this magnitude supported this injunction.
Despite OSHA’s current overreach, the Court held OSHA has the authority to regulate occupation-specific risks related to COVID–19. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible [such as regulating ] researchers who work with the COVID–19 virus… or [those who work in] particularly crowded or cramped environments.” The Court pointed out that these types of risks are different from the everyday risks people face in contracting the virus and that the ETS’s “indiscriminate approach fails to account for this crucial distinction...”
Impact on Employers
In response to the Court’s decision, the Secretary of Labor issued a statement urging employers to require employees to get vaccinated or get tested weekly. The statement also clarified that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.” The statement can be found here.
As the fate of the ETS still hangs in the balance, here are a few things employers should keep in mind:
- If the rule is upheld, employers will have more time to comply with the rule;
- OSHA may reform its rule to a more limited scope;
- Employers who have already implemented a vaccine mandate can rescind the mandate for now, but remember there has been no final decision regarding the ETS yet. Additionally, regardless of the ETS, employers may still have to adhere to state and local rules regarding COVID-19 vaccination and testing requirements;
- Given the current injunction, there is no federal requirement to pay employees for time they spend getting vaccinated or from recovering from the vaccine’s side effects, but employers may be subject to state and local laws that require the same;
- Employers can still voluntarily adopt the provisions of the ETS for their workplace, subject to state law requirements or restrictions regarding vaccination and testing.
CMS and Federal Contractor/Employee Mandate
Concerning the Center for Medicare and Medicaid Service’s Interim Final Rule (“IFR”), on January 13, 2022, the Supreme Court ruled that the IFR is likely to survive review on its merits and dissolved the preliminary injunctions halting the IFR’s enforcement and implementation. The opinion can be found here. The IFR is now in full effect in all states except Texas, as Texas was not part of any cases that appeared before the Court. Just as with the ETS, however, the Court’s ruling is not final. The Court’s order only allows the IFR to remain in effect while the Fifth and Eighth Circuit Court of Appeals complete their review on hearing challenges to the IFR on the merits. But it is likely, that the Circuit Courts will construct their decisions in line with the Supreme Court’s ruling.
Lastly, the Supreme Court has not reviewed any challenges concerning the Federal Contractor Mandate. In our prior alerts we discussed how the mandate was enjoined from being implemented and enforced by the Eleventh Circuit on November 30, 2021. On January 6, 2022, the Sixth Circuit heard a similar case regarding the mandate and agreed with the Eleventh Circuit to stay the enforcement of the mandate.
Joining to the list of nationwide injunctions, on January 21, 2022, President Biden’s mandate that required all federal employees to be vaccinated or be subject to termination is now also halted from enforcement by a U.S. District Court in Texas. In this case, the Court entered a nationwide preliminary injunction and held President Biden’s federal employees mandate is “a bridge too far,” given the Supreme Court’s recent ruling on OSHA’s ETS.
Impact on Employers
Employers should note that the compliance dates for the IFR have been extended. Employees must receive their first COVID-19 vaccine dose by January 27, 2022, and be fully vaccinated by February 28, 2022. Additionally, employers must keep a record of their employees' vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.
The author thanks law clerk Naomi Gulama for her help preparing this alert.