Sixth Circuit Lifts Stay on OSHA Regulation Regarding Vaccines and Testing Mandate

December 20, 2021

By: Stephen B. Stern

     In In Re: MCP No. 165, Occupational Safety & Health Admin Interim Final Rule: COVID-19 Vaccination and Testing, Nos. 21-7000, 4027-4028, 4031-4033, 4080, 4082-4097, 4099-4103, 4108, 4112 4114-4115, 4117, 4133 (6th Cir. Dec, 17, 2021), the United States Court of Appeals for the Sixth Circuit, in a split decision of a three judge panel, lifted the stay issued by the United States Court of Appeals for the Fifth Circuit that suspended implementation of the regulation issued by the Occupational Safety and Health Administration (“OSHA”) regarding COVID-19 vaccines and testing by employers.

     On November 5, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) that requires employers with 100 or more employees to choose among the following:  (1) require all employees to be vaccinated (with certain limited exceptions, including workers who work exclusively outdoors, bona fide religious objections, and health reasons); (2) require unvaccinated employees to wear face coverings in the workplace and be tested weekly for COVID-19; or (3) require workers to do their jobs exclusively from home.  The Fifth Circuit stayed the implementation of that regulation on November 6 and then renewed its decision on November 12.  All the petitions challenging the implementation of the ETS were consolidated into a single action before the Sixth Circuit.  OSHA then filed a motion to dissolve the stay.

     The Sixth Circuit started its analysis by reviewing OSHA’s history and authority.  The Occupational Safety and Health Act of 1970 (the “Act”) was enacted “to assure safe and healthful working conditions for the nation’s workforce and to preserve the nation’s human resources.”  The Secretary of Labor was given “broad authority [under the Act] . . . to promulgate different kinds of standards” for health and safety in the workplace.  Issuing an occupational safety and health standard “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”  Before a standard can go into effect, the proposed standard must undergo a notice-and-comment period for 30 days, and any person or entity who objects to the standard may request a public hearing.  Within 60 days of the conclusion of the notice-and-comment period, the Secretary of Labor either must publish the standard or decline to issue it.  In emergency situations, however, OSHA “shall” promulgate an “emergency temporary standard” that takes “immediate effect.”  The issuance of the temporary standard does not replace the notice-and-comment requirement; rather, the temporary standard is treated as the “proposed rule” and OSHA must proceed over the ensuing six months with the customary notice-and-comment procedures.

     In evaluating whether to sustain the stay, the Sixth Circuit needed to determine (1) whether the applicant seeking the stay made a “strong showing” that it is likely to succeed on the merits; (2) whether the applicant will be irreparably harmed without the stay; (3) whether issuing the stay will substantially injure the other parties interested in the proceeding; and (4) the public interest.

     When examining the likelihood of success on the merits, the Sixth Circuit first examined OSHA’s authority.  It disagreed with the Fifth Circuit and found that the ETS was within OSHA’s authority, because the Act authorizes OSHA to issue an emergency standard to protect workers from “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”  An “agent” is “a chemically, physically, or biologically active principle.”  A virus is defined as “any large group of submicroscopic infectious agents.”  Based on this definition of virus, the court found that COVID-19 was a “toxic” or “physically harmful” agent and, thus, within OSHA’s purview.  This was further confirmed when examining OSHA’s history of responding to other infectious diseases, such as HIV, and hepatitis B and C.

     The court then pivoted to whether the “major questions doctrine” applied.  The “major questions doctrine” examines whether Congress has spoken clearly about giving OSHA (or any regulatory body) such broad authority to address an issue of such “vast economic and political significance.”  The court determined that the “major questions doctrine” did not apply because the ETS did not represent an enormous expansion of OSHA’s regulatory authority, with OSHA regulating workplace safety and health on a national scale since 1970 and OSHA’s regulations included efforts to control the spread of diseases.  The Sixth Circuit rejected the comparison to a recent finding that the Centers for Disease Control and Prevention (“CDC”) exceeded its authority when it promulgated a nationwide moratorium on evictions in counties experiencing high levels of COVID-19 transmission.  The court explained that the Public Health Service Act (“PHSA”) expressly limited the scope of the CDC’s authority and did not grant it authority to implement such a moratorium, which contrasted with the “unambiguous” language of the Act and OSHA’s authority to regulate the workplace and the spread of diseases like COVID-19.

     Next the court evaluated OSHA’s basis for issuing the ETS.  To issue an ETS, OSHA must determine (1) “that employees are exposed to grave danger from exposure to substance or agents determined to be toxic or physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to protect employees from such danger.”  To implement a variance from an OSHA standard, an employer must demonstrate “that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”  

     Based primarily on the 153-page preamble to the ETS, the Sixth Circuit found that the “record as a whole” “contains substantial evidence” to support the emergency standard.  Among other things, the court found that OSHA reasonably concluded there was substantial evidence that COVID-19 “continued to spread, mutate, kill, and block the safe return of American workers to their jobs[,]” and, with the “rapid rise to predominance of the Delta variant[,]” there would be “increases in infectiousness and transmission” and “potentially more severe health effects.”  Moreover, the risk of transmission in the workplace posed a grave danger because transmission can occur among symptomatic, asymptomatic, and pre-symptomatic individuals and “when people are in close contact with one another in indoor spaces (within approximately six feet for at least fifteen minutes)” or “in indoor spaces without adequate ventilation where small respiratory particles are able to remain suspended in the air and accumulate.”  Much of the data OSHA relied on included empirical, peer-reviewed studies, as well as state public health organizations.  Plus, there was substantial evidence to demonstrate COVID-19 presented severe risks to people, such as death (with over 725,000 deaths at the time the ETS was issued and over 800,000 deaths at the time of the Sixth Circuit’s decision) and long-lasting health effects (called “long COVID” or long-haulers).  OSHA estimated that implantation of its ETS would save over 6,500 lives and prevent over 250,000 hospitalizations over six months, which, according to the court, exceeded prior findings of what constituted grave danger.

     The court then sought to determine whether the ETS was “necessary to protect employees from” the grave danger.  This required a more demanding evaluation than the “reasonably necessary or appropriate” standard applicable to typical regulations.  For the ETS to be upheld, OSHA had to demonstrate by clear and convincing evidence that “the regulation is essential to reducing the grave danger asserted” and the economic viability of the ETS because “protection afforded to workers should outweigh the economic consequences to the regulated industry.”  Based on the evidence, OSHA properly found that “[v]accinated employees are significantly less likely to bring (or if infected, spread) the virus into the workplace” “[a]nd testing in conjunction with wearing a face covering ‘will further mitigate the potential for unvaccinated workers to spread the virus at the workplace.’”  

     The court then noted that OSHA limited the ETS to businesses with 100 or more employees for four reasons: (1) larger employers have the administrative and managerial capacity to promptly implement and meet the standard; (2) the coverage threshold reached enough employers to ensure protection to meaningfully reduce transmission rates; (3) the ETS “will reach the largest facilities, where the most deadly outbreaks of COVID-19 can occur[;]” and (4) the coverage threshold is consistent with other coverage thresholds under other comparable regulations.  The fact that smaller employers were not covered and therefore OSHA’s objective to create a safer workplace would not come to fruition was unpersuasive to the court because OSHA is not required to “identify the optimal threshold with pinpoint precision.”  In terms of economic viability, OSHA reasonably concluded according to the court that the cost of implementation was approximately .02% of the revenue for the average covered employer (or approximately $11,298), which was modest in comparison to other standards OSHA implemented and, if it was too expensive for any particular employer, it could raise an infeasibility defense.

     Lastly, the court concluded that the petitioners would not sustain irreparable injury and, in fact, the cost of delaying implementation was relatively high.

    Based on these factors, which were explained in much greater detail in the court’s decision, the Sixth Circuit concluded that OSHA’s motion to dissolve the stay issued by the Fifth Circuit should be granted.  As a result, the ETS went into effect.

     The court’s decision in In Re: MCP No. 165 obviously is significant, as large employers (i.e., those with 100 or more employees) across the country will need to comply with the ETS in an effort to try to stem to spread of COVID-19, which is spreading rapidly.