Vaccine Mandate Updates: A Twist on the Jab

On Friday, December 17, the OSHA 100+ Employees Mandate (the Emergency Temporary Standard or ETS) stay was lifted by the 6th Circuit.

• This means that US employers with 100+ employees have until January 10 to get policies in place and until February 9 to begin testing programs unless another Court decision comes along in the meantime.
• For employers alleging that the rule is too costly or burdensome, 6th Circuit opined that employers can seek a variance from the OSHA rule or make affirmative defenses like infeasibility or impossibility in response to OSHA citations.

Also on Friday, the Eleventh Circuit refused to lift the stay for the Federal Contractor Mandate.

• This means that for now, the Federal Contractor Mandate continues to stay on hold, but could be revived later.

SUPREME COURT CHALLENGE

After the 6th Circuit lifted the OSHA rule stay, 26 trade groups filed an Emergency Application for Immediate Stay to Justice Kavanaugh, the US Supreme Court Justice that oversees the 6th Circuit.

This Emergency Application asks the US Supreme Court to stay the OSHA rule or accept the Emergency Application as a request for review by the US Supreme Court.

RECAP OF 6TH CIRC OPINION LIFTING OSHA STAY

The 6th Circuit opined that:

⚖ OSHA has the authority over viruses such as COVID, that a “grave” emergency is still posed by COVID, and largely relied on OSHA’s 153-page preamble to its ETS (Emergency Temporary Standard).

⚖ It is not “appropriate to second guess that agency determination considering the substantial evidence.”

⚖ “Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks.”

⚖ The Court hinges its arguments on an NPR article alleging that 800,000 people in the US have died from COVID. The 800,000 deaths allegation appears 5 times in the opinion, and the NPR article is cited twice. The other 3 references appear without a citation.

⚖ OSHA has the authority to implement its ETS and disagreed with the 5th Circuit’s constitutional arguments based on the Non-Delegation Doctrine and the Commerce Clause. The Court stated that when Congress passed the OSH Act, it delegated OSHA the authority over illnesses in the workplace. It stated: “it is well-established that the scope of the OSH Act and OSHA’s authority include infectious diseases in the workplace, even when those diseases also exist outside the workplace.”

This is a brief summary, and the full order is linked here for your reference.

WHAT’S NEXT FOR EMPLOYERS WITH 100+ EMPLOYEES

Employers can continue with COVID-19 policies to comply with the vax or test OSHA mandate, and have those policies in effect by January 10, 2022, with testing rollouts to start February 9.