Why might OSHA’s vax-or-test mandate be legal after all? And what should employers be doing about it?

ICYMI, on Friday evening, the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s vax-or-test Emergency Temporary Standard (ETS). You can read a copy of the full opinion here.

Let’s start with the second question in the title of this blog post.

What should employers do now that the ETS is back on (for now)?

OSHA has announced that it will implement the mandate that requires private employers with more than 99 employees to have all employees vaccinated or masked and tested weekly. It will not issue citations for non-compliance with any requirements of the ETS until January 10. It 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 will work closely with the regulated community to provide compliance assistance.

One option is to prepare now to comply with the ETS. Here are seven items to prioritize.

Or you can continue to take a wait-and-see approach. Several petitions have already been filed with the Supreme Court to block it again. Perhaps, the entire Sixth Circuit could revisit the stay en banc too. But nothing guarantees that the ETS will get derailed again.

That brings us to the first question.

Why might OSHA’s vax-or-test mandate be legal after all?

Judge Stranch, who authored the Sixth Circuit’s majority (2-1) opinion, first addressed OSHA’s authority to issue the ETS. “Those letters, O-S-H-A — they mean something. “OSHA stands for the Occupational Safety and Health Administration,” she wrote. “Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .”

In other words, OSHA’s ETS to protect the workplace is right in OSHA’s wheelhouse. And since OSHA has long asserted its authority to protect workers against infectious diseases, OSHA should be able to implement an ETS covering COVID-19 too — even if COVID-19 is not unique to the workplace. Judge Stranch underscored that “the ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

And to those who would argue that states and localities should be the ones to address public health issues, Judge Stranch responded that “Congress, in adopting the OSH Act, decided that the federal government would take the lead in regulating the field of occupational health.”

But what’s so emergent about this particular Emergency Temporary Standard? After all, an ETS is intended for situations in which exposure would place workers in grave danger. COVID-19 has been around for two years. Most folks who get COVID-19 suffer mild, temporary symptoms. The Court had an answer to that too.

Judge Stranch noted that the ETS is part of a series of “progressive steps tailored to the stage of the pandemic,” to address a disease that has “continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve… the ultimate determination of what precise level of risk constitutes a ‘grave danger’ is a policy consideration that belongs, in the first instance, to [OSHA].” COVID-19 has killed 800,000 Americans, hospitalized 1 in 14, and left many with lingering effects (Long COVID). According to OSHA, the ETS would “save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months,” which Judge Stranch noted would surpass what the Fifth Circuit has previously considered a grave danger.

But why is the ETS necessary? Judge Stranch had an answer to that question too:

To answer that question, the Secretary here cataloged OSHA’s actions involving COVID-19, starting with advisory guidance then moving to attempts to enforce its General Duty clause. These actions were to no avail as COVID-19 transmission rates in the workplace continued to climb and COVID-19-related complaints continued to pour in, suggesting “a lack of widespread compliance.” With nothing left at his disposal to curb the transmission in the workplace, the Secretary issued the ETS. We find that this explanation satisfies the Secretary’s obligation. 

Plus, OSHA limited the ETS to businesses with 100 or more employees because larger facilities are more exposed to the dangers of COVID-19 and bigger companies are better suited to implementing the ETS. Plus, “OSHA may lean on the side of overprotection rather than underprotection when promulgating an ETS.”

There’s more to Judge Stranch’s 37-page opinion than I can fit into this blog post without making it too unwieldy. So, I’ll close with a key point that I haven’t previously emphasized. That is, any party seeking a stay of the ETS requires must show blocking the ETS is in the public interest.

Put simply, are larger businesses and their workers better off with a vax-or-test mandate than without it?

The Court concluded that “fundamentally, the ETS is an 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.” It will save thousands of lives and hundreds of thousands of hospitalizations and “a stay would risk compromising these numbers, indisputably a significant injury to the public.”

“The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy, particularly here where Petitioners have not shown a likelihood of success on the merits.”