On December 17, 2021, the U.S. Court of Appeal for the 6th Circuit, in a 2-1 decision, upheld the federal government’s right to promulgate a “vaccine or test” mandate through an Emergency Temporary Standard (ETS) issued by the federal Occupational Safety and Health Administration (OSHA). The ETS was originally issued on November 5, 2021. The next day, the U.S. Court of Appeals for the 5th Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Petitions challenging the ETS—filed in Circuits across the nation—were consolidated in the 6th Circuit, such that its decision is now binding, pending review by the Supreme Court.
The 6th Circuit’s decision overturned the 5th Circuit’s conclusion that the ETS is beyond the scope of OSHA’s statutory authority. The ETS was issued pursuant to 29 U.S.C § 655(c)(1), which requires OSHA to issue an emergency standard if necessary to protect workers from a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” The 6th Circuit found that the COVID-19 virus was within the meaning of this statutory language.
The 6th Circuit also rejected the 5th Circuit’s determination that the ETS violated the Major Questions Doctrine. That principle loosely provides that if an agency’s regulatory action brings about an enormous and transformative expansion in an agency’s regulatory authority, particularly on matters of vast economic or political significance, then there must be clear congressional authorization for such action. The 6th Circuit found that the vaccine or test mandate did not represent a major expansion of OSHA’s regulatory authority.
Third, the 6th Circuit determined that the ETS was a proper exercise of OSHA’s authority. In reaching that conclusion it found there was substantial evidence “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 that an emergency standard “is necessary to protect employees from such danger.”
Finally, the Court’s opinion also disposed of findings by the 5th Circuit that the ETS violated the Commerce Clause and the non-delegation doctrine. Regarding the former, the Court held that the ETS did not regulate non-economic individual actions, but rather companies with 100 or more employees who were involved in commercial activities. Regarding the latter, the Court held that non-delegation doctrine, which bars Congress from transferring its legislative power to another branch of Government, was not violated because OSHA represents a sufficiently directed legislatively-created administrative body to execute the power vested in the Congress.
What Does the ETS Require?
The OSHA ETS established mandatory federal requirements for vaccination and testing for large employers (100 or more employees), as well as state and local government employers in states without their own OSHA approved workplace safety and health programs. California, as one of 28 states with its own OSHA-approved workplace safety and health programs, may adopt its own regulations, provided those regulations are at least as effective as the federal standards.
Under the rules, employers must implement a policy that requires employees either (1) to be fully vaccinated or (2) to provide proof of weekly COVID-19 testing and wear a face mask while indoors. The original deadline for implementation was January 4, 2022, but given the five week delay as a result of the 5th Circuit’s stay the Biden administration announced on Friday that the deadline was pushed to February 9, 2022.
The rules also require employers to determine the vaccination status of all employees and obtain proof of vaccination for all employees claiming to have received the jab. Employers must also provide employees four hours of paid release to obtain a vaccination and a reasonable amount of paid sick leave if an employee experiences side effects from the vaccine. The testing of employees must occur no less than once per week for any employee that is in the workplace even once per week.
What Should Employee Unions Do?
Despite mandated compliance with the ETS, employers must still meet and confer with recognized employee organizations over the impacts and effects of the rules. Associations are advised to consult with legal counsel to determine the specific impact of this legislation upon their members and to consider an appropriate course of action.
Note: The 490-page ETS is subject to change. If the ETS is modified, this news alert will be updated accordingly on the RLS website.