Court Lifts Stay on OSHA’s COVID-19 Vaccination or Testing Mandate

On December 17, 2021, a panel of three judges on the U.S. Court of Appeals for the Sixth Circuit delivered a highly anticipated decision regarding the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  In a divided decision, the Sixth Circuit granted the Biden administration’s request to dissolve the Fifth Circuit’s earlier stay on the regulation—essentially, allowing OSHA’s COVID-19 ETS to go into effect.

The Past: OSHA’s ETS Announcement and the Fifth Circuit Stay

On November 5, 2021, OSHA’s ETS on COVID-19 vaccination and testing was officially published in the Federal Register.  The ETS mandated employers under OSHA’s jurisdiction with 100 or more employees to require those employees to either be vaccinated or show a negative COVID-19 test result on a weekly basis.

Almost immediately after OSHA published the ETS, it was met with a flurry of legal challenges.  On November 6, 2021, the Fifth Circuit Court of Appeals stayed (i.e., suspended enforcement of) the ETS, citing “grave statutory and constitutional issues.”  As more lawsuits flooded all federal Courts of Appeal, the U.S. Judicial Panel on Multidistrict Litigation consolidated all of cases into one case in a court randomly selected by the Panel.  Through that lottery process, the Sixth Circuit was chosen as the court to hear all consolidated cases challenging OSHA’s Vaccine or Testing rule.

The Present: The Sixth Circuit’s Decision

On December 17, 2021, the Sixth Circuit Court of Appeals granted the Biden administration’s request to dissolve the Fifth Circuit’s stay on OSHA’s ETS.  In effect, this lifted the blocked order and cleared the path for OSHA’s ETS to go into effect.

The majority opinion specifically noted:

“[T]he costs of delaying implementation of the ETS are comparatively high. 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. 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. 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 . . .”

Leading up to this decision, the Sixth Circuit denied en banc review to the consolidated OSHA ETS cases.  En banc review refers to a decision that is heard by the full court of all appeals judges within a jurisdiction.  In the Sixth Circuit, where there are 16 active judges, an en banc review would be heard by all 16 appeals judges.  However, en banc review requires a majority of active judges to vote in favor of such review—which was not the case here.

Instead, the consolidated OSHA ETS cases were heard by a panel of three judges:

• Jane Branstetter Stranch (appointed by President Obama);
• Julia Smith Gibbons (appointed by President George W. Bush); and
• Joan Larsen (appointed by President Trump).

Out of those three judges, two judges decided in favor of lifting the stay—with one judge delivering a separate concurring opinion.  One judge dissented and opposed OSHA’s motion to dissolve the stay.  With opinions split even among the Sixth Circuit bench, further litigation is undoubtedly on the horizon.

The Future: What Happens Next?

The Sixth Circuit’s decision leaves open the door for future challenges.  Immediately after the ruling was announced, appeals were filed to the U.S. Supreme Court by an advocacy organization and groups of businesses.  Petitioners will surely continue seeking en banc (or full court) review of this determination or petitioning the U.S. Supreme Court for expedited review.  If the Supreme Court grants review, the question will then turn to how quickly the Court will act.

At this time, it is unclear how the Sixth Circuit’s ruling will impact the vaccination deadlines contained the OSHA ETS.  As a reminder, the ETS initially imposed obligations for employers beginning December 5, 2021 and gave an ultimate deadline for vaccine or testing requirements of January 4, 2022.  OSHA has not yet issued new guidance following the court rulings.

We will continue to monitor this situation for further developments.