US Sixth Circuit dissolves stay of OSHA ETS

On Friday evening, December 17, the Sixth Circuit Court of Appeal, in a 2-1 decision, dissolved the Fifth Circuit's earlier stay of the federal OSHA “vaccine-or-test” Emergency Temporary Standard (ETS). 

At bottom, Judge Jane Stranch (authoring the principal opinion) found that OSHA had acted within its Congressionally-conveyed authority, had a proper prima facie basis for adopting the ETS as it did, and satisfied the regulatory prerequisites for an ETS. Moreover, the Court held the Commerce Clause and other cited constitutional doctrines were not violated. 

The Court placed extraordinary emphasis on OSHA's 153-page preamble to the ETS as laying an adequate foundation to justify its existence (akin in our view to "Chevron deference" to the presumed expertise of an administrative agency).

The dissent took great exception to these conclusions and found compelling the Fifth Circuit's stated reasons for imposing the stay.

In dissolving the stay, the Sixth Circuit said nothing about the deadlines originally articulated in the ETS or how employers should now proceed to implement its requirements. On Saturday, December 18, OSHA issued a public statement, noting, “[t]o account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

Petitions for review of the Sixth Circuit’s decision have already been filed in the US Supreme Court. More are expected. Justice Kavanaugh, who has jurisdiction over the Sixth Circuit, has requested the government to respond by December 30 to petitioners’ requests to reinstitute the stay. Justice Kavanaugh has authority to grant petitioners’ applications and stay the ETS pending review by the entire Court. He could also refer the matter to the full Court for a decision on the stay.

It is now predicted that some action by SCOTUS will be taken during the first week in January in order to provide some level of predictability to the affected employer community.