{"id":1896,"date":"2021-12-20T09:16:27","date_gmt":"2021-12-20T14:16:27","guid":{"rendered":"https:\/\/mshadefensereport.com\/?p=1896"},"modified":"2026-03-06T18:32:55","modified_gmt":"2026-03-06T18:32:55","slug":"breaking-sixth-circuit-rescinds-stay-of-oshas-vaccinate-or-test-emergency-temporary-standard","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/msha-defense-report\/breaking-sixth-circuit-rescinds-stay-of-oshas-vaccinate-or-test-emergency-temporary-standard\/","title":{"rendered":"BREAKING \u2013 Sixth Circuit Rescinds Stay of OSHA\u2019s Vaccinate-or-Test Emergency Temporary Standard"},"content":{"rendered":"

By Conn Maciel Carey\u2019s\u00a0COVID-19 Task Force<\/a><\/strong><\/em><\/p>\n

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of\u00a0OSHA\u2019s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS)<\/a>.\u00a0 It was a very busy Friday night for everyone in the OSHA world.\u00a0 In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved\u00a0the nationwide stay of OSHA\u2019s Vaccination ETS that had been issued by the Fifth Circuit in November<\/a>.<\/p>\n

The Department of Labor and\u00a0OSHA then immediately issued a statement<\/a>\u00a0that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.\u00a0 Then, within an hour of\u00a0the Sixth Circuit decision<\/a>\u00a0being released, numerous parties\u00a0filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS<\/a>.\u00a0 And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed\u00a0an emergency application for a stay<\/a>.\u00a0 What a night.<\/p>\n

\"\"<\/a>We briefly summarize the Sixth Circuit\u2019s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.\u00a0 Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.\u00a0 It is alive and well, at least until we hear from the Supreme Court.<\/p>\n

Sixth Circuit Decision<\/u><\/strong>\u00a0<\/u><\/strong><\/p>\n

In a\u00a02-1 opinion written by Obama-appointee Judge Jane Stranch<\/a>\u00a0and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA\u2019s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee. \u00a0Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.\u00a0 Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump\u2019s short-list of potential nominees to the Supreme Court, dissented.<\/p>\n

In a nutshell, the Court\u2019s rationale for lifting the stay is that<\/span>\u00a0the ETS is\u00a0\u201can important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs[.]\u201d<\/em><\/p>\n

The Sixth Circuit addressed the long-established four-factor test to determine whether a stay pending judicial review is merited \u2013 that is:<\/p>\n

    \n
  1. whether the stay applicant has made a strong showing that he is likely to succeed on the merits;<\/li>\n
  2. whether the applicant will be irreparably injured absent a stay;<\/li>\n
  3. whether issuance of the stay will substantially injure the other parties interested in the proceeding; and<\/li>\n
  4. where the public interest lies.<\/li>\n<\/ol>\n

    Judge Stranch concluded that\u00a0\u201c[t]he harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy[.]\u201d<\/em>\u00a0 OSHA had estimated that the ETS could save more than 6,500 lives and prevent over 250,000 hospitalizations in the six months that it would be in effect.<\/p>\n

    Additionally, and importantly, the Sixth Circuit recognized that:<\/p>\n

    \u201c[t]he ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers\u2014employers with 100 or more employees\u2014to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. The employer\u2014not OSHA\u2014can require that its workers get vaccinated, something that countless employers across the country have already done.\u201d<\/em><\/p><\/blockquote>\n

    It also addressed arguments asserting that COVID-19 is no longer a grave danger and claims that OSHA\u2019s delay in promulgating the ETS is evidence that no grave danger exists.\u00a0 To this, Judge Stranch stated that:<\/p>\n

    \u201cWhen the pandemic began, [\u2018]scientific evidence about the disease[\u2019] and [\u2018]ways to mitigate it were undeveloped.[\u2019] At that point, OSHA chose to focus on nonregulatory options, and crafted workplace guidance [\u2018]based on the conditions and information available to the agency at that time,[\u2019] including that [\u2018]vaccines were not yet available.[\u2019] The voluntary guidance, however, proved inadequate, and as employees returned to workplaces the [\u2018]rapid rise to predominance of the Delta variant[\u2019] meant [\u2018]increases in infectiousness and transmission[\u2019] and [\u2018]potentially more severe health effects.[\u2019] At the same time, the options available to combat COVID-19 changed significantly: the FDA granted approval to one vaccine on August 23, 2021, and testing became more readily available. These changes, coupled with the ongoing risk workers face of contracting COVID-19, support OSHA\u2019s conclusion that the time was ripe for OSHA to address the ongoing danger in the workplace through an ETS.\u201d<\/em><\/p><\/blockquote>\n

    That\u2019s the gist of it. The court essentially agreed with OSHA\u2019s position straight down the line.\u00a0 Bush-appointee Gibbons agreed, but also issued a short one-page concurring opinion noting the limited role of the judiciary in the dispute about pandemic policy.\u00a0 Stating that she agrees that the government\u2019s motion to dissolve the stay should be granted and that she \u201cconcurs fully\u201d in Judge Stranch\u2019s opinion, Judge Gibbons went on to state that, although petitioners and various opinions discuss at length how OSHA could have handled the pandemic\u2019s impact on places of employment differently, and that reasonable minds may disagree on OSHA\u2019s approach to the pandemic, the Court does not substitute its judgment for that of OSHA, which has been tasked by Congress with workplace safety and health policymaking responsibilities.\u00a0 Rather, beyond constitutional limitations, the work of an agency, often scientific and technical in nature, is outside the Court\u2019s expertise.\u00a0 Judge Gibbons concluded:\u00a0\u201cOur only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur.\u201d<\/em><\/p>\n

    In dissent, Trump-appointee Larsen vociferously disagreed with the majority ruling, stating that the petitioners have shown a likelihood of success on the merits of their challenge to the legality of the ETS. Judge Larsen takes pointed issue with the majority\u2019s characterization of the rule as permitting employers\u00a0\u201cto determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,\u201d<\/em>\u00a0stating\u00a0\u201dthat was the state of federal law before the rule, not after.\u201d<\/em><\/p>\n

    In support of the need to keep the stay in place, Judge Larsen appeared to be moved by the sheer number of legal theories under which the ETS has been challenged.\u00a0 She states that the challengers\u00a0\u201csay, for example, that the mandate violates the non-delegation doctrine, the Commerce Clause, and substantive due process; some say that it violates their constitutionally protected religious liberties and the Religious Freedom Restoration Act of 1993.\u201d<\/em>\u00a0 To lift the stay she argues would require the court to\u00a0\u201cconclude that not one of these challenges is likely to succeed.\u00a0 A tall task.\u201d<\/em>\u00a0 And she clearly accepts at least a number of the legal bases for the challenges, stating that it is clear to her that\u00a0\u201cthe Secretary of Labor lacks statutory authority to issue the mandate . . . that the Secretary made no finding that the emergency rule is \u2018necessary\u2019 in any sense even approaching \u2018indispensable.\u2019\u201d<\/em>\u00a0 Finally, Judge Larsen relies on OSHA\u2019s timing, stating that\u00a0\u201cOSHA waited well over a year to respond to, in the agency\u2019s words, \u2018the biggest threat to employees in OSHA\u2019s more than 50-year history;\u2019\u201d<\/em>\u00a0and argues that the data presented by OSHA does not support a finding that all covered employees have a high risk both of contracting COVID-19 and suffering severe consequences from it. Indeed, she states,\u00a0\u201cthe government\u2019s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64.\u201d<\/em>\u00a0 The dissent concludes on a somewhat political note, echoing statements about freedom and choice:\u00a0\u201cthe mandate is aimed directly at protecting the unvaccinated from their own choices. Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time.\u201d<\/em><\/p>\n

    Suffice it to say, the dissent demonstrates a massive gulf between Judge Larsen\u2019s reasoning, and her dissenting opinion aligns well with the Fifth Circuit\u2019s original stay decision.<\/p>\n

    Perhaps most interesting about the Sixth Circuit\u2019s ruling is that it was issued by a politically balanced panel. While the Trump appointee dissented, the majority was balanced between a Democratic-appointed judge and a Republican-appointed one.\u00a0 It is too early to say whether this foreshadows political alliances that may form in the array of other legal challenges to the Administration\u2019s various vaccine mandates, but it is an interesting development.<\/p>\n

    Deadlines for Compliance<\/u><\/strong>\u00a0<\/u><\/strong><\/p>\n

    Nearly immediately upon issuance of the Sixth Circuit decision, the\u00a0Dept. of Labor issued this news release<\/a>\u00a0and OSHA updated its\u00a0webpage about the Vaccination ETS<\/a>\u00a0with this snippet:<\/p>\n

    \"\"<\/a><\/p>\n

    Technically, all of the elements of the ETS are in effect right now, except for the requirement for unvaccinated workers to produce a weekly negative test to report to work.\u00a0 However, thankfully OSHA makes clear in its public statements since last night that it will use its enforcement discretion to not cite companies for a few additional weeks for non-compliance between now and a series of new January\/February compliance deadlines\u00a0if the employer can demonstrate that it has been making good faith efforts to come into compliance.\u00a0\u00a0<\/em><\/strong>Specifically,\u00a0the key first date by when employers must have everything but testing in place is January 9th<\/sup>\u00a0followed by implementation of the testing program for unvaccinated workers by February 8th<\/sup>.<\/strong><\/p>\n

    Here is our updated compliance deadline chart:<\/p>\n

    \"\"<\/a><\/p>\n

    Accordingly, we strongly recommend companies continue or reinstitute their efforts to develop the programs required by the ETS and move toward compliance.\u00a0 OSHA enforcement discretion will be offered only to those who can make a serious showing that they are making efforts towards compliance and program implementation.<\/p>\n

    Written Policy<\/u><\/strong><\/p>\n

    In that regard, Conn Maciel Carey\u2019s OSHA Practice has been\u00a0helping dozens of companies develop tailored written COVID-19 Vaccination, Testing, and Face Coverings policies and the ancillary forms and materials required by the ETS.\u00a0\u00a0<\/strong>We have a questionnaire that we work through with our clients to identify the specific issues and options employers must address (e.g., what cap will you set for paid recovery time; will you provide test kits to employees or require them to take tests offsite; how will you communicate to employees the information required to be shared under the ETS; etc.), and with those answers, we develop a customized written program document that is required by the ETS.\u00a0 The policy package we deliver includes all the necessary related forms, such as:<\/p>\n