Sixth Circuit Panel Dissolves Stay of OSHA Vaccine/Testing Mandate
On December 17, 2021, the Sixth Circuit Court of Appeals, dissolved the stay previously placed on OSHA’s Emergency Temporary Standard (“ETS”) by the Fifth Circuit. The ETS mandates employers with 100 or more employees require all employees to be fully vaccinated against COVID-19 or be required to wear face coverings and undergo weekly testing. (See The Adelman Advantage summary.) OSHA published the ETS on November 5, 2021. On November 6, 2021, the Fifth Circuit Court of Appeals stayed the ETS pending judicial review. The Fifth Circuit renewed that decision in an opinion issued on November 12, raising several reasons why the ETS was likely to be struck down.
The Sixth Circuit did not address how its decision would impact the timing of the ETS’s vaccination and testing and requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022, respectively. The day after the Sixth Circuit’s decision, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Therefore, while the ETS is now in effect, OSHA will not enforce its requirements until the dates noted above.
The Sixth Circuit’s order dissolving the Fifth Circuit’s stay discussed several arguments and found:
OSHA had the statutory authority to implement a national vaccine-or-test mandate and that as an agent that causes bodily harm, a virus falls squarely within the scope of OSHA’s emergency standard statutory authority.
The ETS was based on substantial evidence and that OSHA enacted the ETS in a reasonable manner. Addressing the Fifth Circuit’s view that OSHA’s failure to implement the ETS at the outset of the pandemic implied that the ETS does not address a true emergency, the Court found that whether a true emergency exists does not turn on when OSHA implements the ETS. The Court cited OSHA’s reliance on the rise of the Delta variant and the FDA approval of several vaccines as evidence that OSHA was responding to a true emergency.
OSHA’s public health data detailing the vast deleterious effect COVID-19 had on workers and the public at large proved COVID-19 was a “grave danger” to all workplaces.
Petitioners could not show irreparable harm because the ETS provides employers with multiple options aside from vaccination itself (e.g. mask-and-test, seeking a variance from the standard, etc.). The Court found that delaying the implementation of the ETS puts workers and the general public at further risk by failing to curtail the spread of the COVID-19 virus.
South Carolina’s Attorney General and 26 other states and various organizations filed with the Supreme Court of the United States on December 18, 2021, asking it to block the OSHA vaccine mandate.
There are three ration vaccine mandates being challenged in court:
This OSHA mandate, which is now in effect after the Sixth Circuit’s lifting of a stay which is now being appealed to the Supreme Court for reinstatement of the stay.
The mandate for healthcare workers. The Fifth Circuit has blocked that mandate in states that have sued to stop the mandate from being enforced. That stay is still in place in the plaintiff states, including South Carolina.
The federal contractor mandate. A District Court has ordered a temporary injunction to block that mandate nationwide, which is still in effect. That may be appealed to the Supreme Court as well.
Fifth Circuit Lifts Injunction on CMS Vaccine Mandate in Half of the Nation
Recall the Adelman Advantage report on the CMS Rule and a stay of vaccine mandates applicable to all 50 states (see the November Adelman Advantage). On December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit scaled back the reach of the preliminary injunction against the Centers for Medicare and Medicaid Services (“CMS”) COVID-19 vaccination mandate (“Rule”) that a Louisiana federal district court issued two weeks earlier. The injunction is now limited to the 14 states who are parties to the lawsuit: Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.
The Fifth Circuit’s decision means that the CMS Rule is now unhindered in 26 states. On December 13, 2021, the U.S. Court of Appeals for the Eighth Circuit denied CMS’s motion to stay the first preliminary injunction issued against the CMS Rule. That preliminary injunction, issued by a Missouri federal district court on November 29, was not nationwide. Instead, it only blocked the Rule in ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. Consequently, the CMS Rule must now be stayed in 24 states pending further developments in the litigation. We can expect a U.S. Supreme Court decision on these issues.
There is no guidance yet from the Centers for Medicare and Medicaid Services on its enforcement stance and we continue to advise clients to continue their preparations for vaccine mandates in the event of a further reversal of these injunctions. And in states that are subject to the mandates once again, facilities should consider weighing the threat of enforcement against other practical issues in implementing the rules—while the industry awaits further CMS guidance.
