Vaccine Mandate: Blog Series UPDATE

We previously informed you of the Stay issued on November 6, 2021, by the United States Court of Appeals for the Fifth Circuit staying the implementation of OSHA’s emergency temporary standard (ETS) that created a vaccine mandate for all employers with 100 or more employees.  After the Stay was issued, all nationwide challenges to the ETS were consolidated before the United States Court of Appeals for the Sixth Circuit headquartered in Cincinnati, Ohio.  On Friday December 17, 2021, the Sixth Circuit ruled on OSHA’s request to dissolve the Fifth Circuit’s Stay.  By a vote of 2-1, the Sixth Circuit has dissolved the Stay meaning OSHA’S ETS will now go into effect and all employers with 100 or more employees must comply with the ETS.  https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf.  OSHA has already announced that they will give employers covered by the ETS until January 10, 2022, to comply with all non-testing requirements of the ETS and until February 9, 2022 to comply with testing-related requirements.

The Sixth Circuit in dissolving the Stay took what they described as a “holistic” view of OSHA’s statutory language.  The Sixth Circuit majority held that OSHA has the statutory authority to regulate viruses.  The Court described OSHA’s statutory authority to “assure safe and healthful working conditions.”  The Majority derisively rejected the notion that OSHA’s powers are limited to just hard hats and goggles.  As such, the Sixth Circuit found clear statutory authorization for OSHA to promulgate the ETS.  The Sixth Circuit was particularly concerned with the Fifth Circuit’s focus on the Major Question Doctrine.  The Major Question Doctrine is a rarely used tenant of administrative law that requires an administrative agency to have clear Congressional authority before adopting regulations that have vast political and economic significance.  The Sixth Circuit held that the Major Question Doctrine was inapplicable because OSHA’s actions in implementing the ETS was fully authorized by statute and consistent with OSHA’s past practice. 

Judge Joan Larsen, a Trump appointee to the Sixth Circuit dissented.  Judge Larsen rejected the Majority’s conclusion that there was statutory authority for OSHA to act.  Judge Larsen focused on the statutory requirement that the ETS must be “necessary.”  She chastised both OSHA and the Majority for conflating the concepts of effective (which she believes the vaccine is) versus necessary (which she believes it is not).  Judge Larsen, in finding that the vaccine was not necessary, specifically addressed that the risks from COVID are equal for a vaccinated 50 year employee and an unvaccinated 18 year old employee.  As such, she rejected this one size fits all approach to the ETS.  Judge Larsen analogized the ETS to OSHA requiring all pizza shop employees having to wear an oven mitt throughout the workday whether they are taking a pizza out of the oven or answering the telephone. 

There is no doubt this matter is heading straight to the Supreme Court and most likely within the next few days.  Until the Supreme Court acts, employers must be prepared to have their vaccination, masking and testing policies in place prior to January 10, 2022, and be prepared to fully comply with all requirements by February 9, 2022.

For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.