On Saturday, the U.S. Department of Labor issued a news release stating: “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.”
Background
After OSHA issued the ETS in early November, private employers, state governments, and other organizations filed lawsuits challenging the ETS. Shortly after the ETS went into effect, the U.S. Court of Appeals for the Fifth Circuit issued a stay preventing OSHA from enforcing the ETS. Given the numerous legal challenges to the ETS filed in federal courts across the country, the matters were consolidated and randomly assigned to the Sixth Circuit for resolution. OSHA then filed a motion with the Sixth Circuit to dissolve the stay issued by the Fifth Circuit.Sixth Circuit Decision
In its decision, the Sixth Circuit held “OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” Id. at 13. Rejecting arguments that OSHA improperly expanded its regulatory authority, the Court stated “[t]he ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.” Id. at 15.With respect to the showing of a “grave danger” necessary to warrant the issuance of an ETS, the Court held “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” Id. at 21. The Court emphasized the risk of transmission posed by traditional workplaces where people work in close proximity, the possibility of transmission from asymptomatic or pre-symptomatic individuals, empirical evidence associating outbreaks with workplaces, and the severity of harm posed by the virus.
The Sixth Circuit also held OSHA adequately showed the ETS is “necessary to alleviate a grave risk of worker deaths” during the timeframe that it is effective. Id. at 26. Based on evidence presented by OSHA, the Court held: “Vaccinated employees are significantly less likely to bring (or if infected, spread) the virus into the workplace. And testing in conjunction with wearing a face covering will further mitigate the potential for unvaccinated workers to spread the virus at the workplace.”
With respect to the ETS’s threshold for coverage (i.e., 100 or more employees), the Court noted: “OSHA’s ETS readily shows a relationship to the underlying regulatory problem—larger employers are better able to implement the policies, are at heightened risk, and regulating them will be a significant step in protecting the entire workforce from COVID-19 transmission.” Id. at 30. Regarding the costs imposed on those employers, the Court pointed to OSHA’s economic analysis concluding the costs to be “about $11,298 per affected entity” which is “modest” compared to costs imposed by other OSHA standards, especially when considering the economic harm posed by closures due to workplace outbreaks. Id. at 31.
The Court concluded by stating, “[f]undamentally, 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. In a conservative estimate, OSHA finds that the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.” As such, the Sixth Circuit determined the stay of the ETS posed a “significant injury to the public” and dissolved it.
Conclusion
Multiple parties challenging the ETS already have petitioned the U.S. Supreme Court for review of the Sixth Circuit’s decision. Regardless of whether you agree with the decision or the Sixth Circuit’s reasoning, absent the U.S. Supreme Court overturning the decision, the deadline for complying with nearly all of the ETS’s requirements is January 10, 2022. Most significantly, these employer requirements include obtaining proof of vaccination for all employees and requiring unvaccinated employees wear face coverings. The only requirement for which enforcement is delayed until February 9, 2022 is the weekly testing of unvaccinated employees.As employers prepare for the ETS, they should start by asking whether they intend to mandate the COVID-19 vaccine or require their unvaccinated employees test weekly. For many employers this is a difficult question to answer and requires considering the impact of a vaccine mandate on what already may be a depleted workforce, how to address religious and disability accommodations, the cost and administrative burden of weekly testing, etc. For help weighing these considerations and complying with the ETS requirements, employers should contact counsel.
*David R. Vance, an OSBA Certified Specialist in Labor & Employment Law, regularly advises employers on COVID-19 related issues. If you have questions about the Sixth Circuit’s decision, OSHA’s ETS, or other employment law issues, please contact David at drv@zrlaw.com or 216-696-4441.