In a decision released late Friday night, a three-judge panel from the Sixth Circuit issued a decision “dissolving” the Fifth Circuit’s stay order preventing OSHA from enforcing its “vaccination or testing” rule for employers with 100 or more employees. One judge dissented.
Background
On November 5, OSHA published its Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”). The OSHA ETS Rule, remember, requires employers with 100 or more employees to implement COVID-19 vaccination policies that, by January 4, 2022, require employees to either: (a) be vaccinated against COVID-19 or (b) submit to weekly COVID-19 testing.
On November 12, the Fifth Circuit issued an order preventing OSHA from enforcing the OSHA ETS Rule. As a result, OSHA published notice stating that the agency “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The case was then reassigned to the Sixth Circuit.
Sixth Circuit’s Decision
In rejecting the Fifth Circuit’s decision staying the OSHA ETS Rule, two of the three Sixth Circuit judges noted that OSHA “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The majority added: “It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.”
The third judge dissented, arguing that OSHA “wants to issue a rule of national import, covering two-thirds of American workers, and [OSHA] wants to do it without clear congressional authorization, without even public notice and comment, and with a capacious understanding of necessity.”
Bottom Line
The Sixth Circuit’s ruling will not be the final word on the OSHA ETS Rule, as the case will invariably be headed to the Supreme Court. The plaintiffs will also likely seek to have the three-judge decision “stayed” while it appeals, so that OSHA is prevented from enforcing its rule during the pendency of the appeal. Such relief, however, is not guaranteed.
Absent such relief, the Sixth Circuit decision appears to give OSHA the green light to “restart” enforcement of the OSHA ETS Rule (including the January 4th deadline). Whether OSHA will do so, however, remains to be seen.
We will continue to monitor this situation as it continues to evolve.