5th Circuit’s ETS Stay is Dissolved; What This Means for Employers

Considering the number of parties who filed suit against OSHA, it’s a wonder we got a decision out of the Sixth Circuit before the end of the millennium.  However, the normally conservative circuit issued its decision late last week, and the results are likely not what employers were hoping for.

The question to be answered on appeal was whether the ETS issued in November was within OSHA’s statutory authority.  §655(c)(1) of the Occupational Safety and Health Act (the Act) requires OSHA to issue an emergency standard if necessary to protect workers from a grave danger presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”  Other provisions of the Act allow OSHA to regulate infectious diseases and viruses.  The court laid out the long history of OSHA regulating against the transmission of infectious diseases and bloodborne pathogens, and even requiring employers to make vaccines available to employees at risk of exposure to certain diseases.

The court stated, “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.”

From that point forward, the decision was pretty much made for the court.  The court found that an emergency existed in light of the hundreds of thousands of deaths associated with COVID-19, and that a grave danger existed to workers exposed to the virus while in the workplace.  The court found that the ETS was necessary to alleviate a grave risk of worker deaths, due to the vaccine and testing mandates abilities to mitigate spread of COVID-19.

Finally, in addressing the Constitutional Challenges of the ETS, the court found that the ETS regulated the conduct of employers, not individuals, and therefore did not impede on states’ police power.  The regulation of employer activity has long fallen under Congress’s powers.  Furthermore, the court determined that Congress had already delegated OSHA the power to create the ETS.

As the court found no likelihood of success by the petitioners, the court lifted the stay, and the ETS will be moving forward, with enforcement for employee vaccination to begin January 10.

In the state of Minnesota, MNOSHA did not wait long to announce that it would be proceeding with the implementation of the ETS, as is required under its state plan.  While some thought there might be a delay in the state’s implementation for public employers, that is not the case.  By January 10, 2022, employers must make “good faith” efforts to implement the rules established by the ETS for employee vaccination, and will begin issuing citations for testing requirements on February 9, 2022.

If you have not already, you should immediately work with your legal team to comply with the ETS.  The Sixth Circuit’s decision has already been appealed to the Supreme Court, but as you can see, the timelines may not be delayed long if the ETS survives appeal.  If you, or your organization, need assistance in complying with these federal regulations, contact Wiley Reber Law, for legal advice that works.