Patrice Arend
BridgeTower Media Newswires
With OSHA’s vaccine mandate on hold pending judicial review, here’s what’s next for the courts, and a look at what businesses should be doing in the meantime.
The much-discussed “vaccine mandate” issued through the Emergency Temporary Standard, or ETS, from the Occupational Safety and Health Administration has been put on hold, following the Nov. 6 stay issued by the U.S. Fifth Circuit Court of Appeals. The Fifth Circuit subsequently reaffirmed and extended that stay indefinitely, pending “adequate judicial review of the petitioner’s motion for permanent injunction.”
OSHA suspended activities related to the implementation and enforcement of the ETS pending future legal developments. The U.S. Sixth Circuit Court of Appeals now has jurisdiction over ETS challenges.
The OSHA mandate, issued under ETS, instructs businesses that employ 100 or more workers to require those workers in general to do one of two things to ensure workplace safety:
• Get vaccinated for COVID-19, or
• Wear a mask and take a weekly COVID-19 test.
OSHA has filed an emergency motion to dissolve the injunction and lift the stay. For its part, the Department of Justice has stated that it will “vigorously defend” the OSHA guidelines.
The big question, of course, is what happens next and when — and if — we are likely to get some kind of final resolution on this issue. Unfortunately for many employers, the only thing that is clear at this point is that things aren’t very clear at all.
From a legal/procedural standpoint, at least, the next steps are likely to follow a relatively predictable script. OSHA’s emergency motion has been filed and will be heard by a randomly assigned three-member panel of the Sixth Circuit. Since 11 of the 16 active judges on the Sixth Circuit are Republican appointees, OSHA’s chances of prevailing on what has become a politically fraught issue would seem to be slim.
Regardless of how the three-member panel rules, however, the losing party will almost certainly file a motion for an en banc hearing before the full court. There is actually already a petition pending to accelerate the timeline and skip the three-member panel review and proceed directly to en banc review for OSHA’s emergency motion. Regardless of the outcome in the Sixth Circuit however, it would seem to be a foregone conclusion that this issue will ultimately end up before the U.S. Supreme Court, which also has a conservative majority, making any ruling predictions at this time premature.
For historical perspective, OSHA hasn’t had the best luck when it comes to issuing emergency orders. The agency has previously issued 10 orders under the temporary emergency standard. Six of those orders have been challenged in court and, ultimately, only one of those challenges survived judicial review. Depending on how you look at it, that is either a 50% success rate for all orders or a 17% success rate for those that have been adjudicated in the courts.
For non-emergency orders, OSHA provides notice of a proposed new rule, opens a six-month comment period for feedback, makes any necessary changes based on that feedback, and then puts the order into effect. Skipping that six-month review process and issuing an order under the ETS indicates that the agency believes there is a heightened level of necessity justifying the shorter timeline for implementation.
That ETS standard could have a bearing on how the Sixth Circuit — and, perhaps ultimately, the U.S. Supreme Court — rules on this issue. The court could determine that the conditions cited by OSHA do not justify the issuance of an emergency order under the ETS. The court could also rule on constitutional grounds, finding that OSHA’s mandate is a violation of the Commerce Clause or is in some other way constitutionally unsound.
Regardless of whether the eventual decision is based on the validity of an ETS issuance or about the proper exercise of power, there are three likely outcomes. The Sixth Circuit could:
• Affirm the Fifth Circuit ruling and invalidate the ETS
• Lift the stay and allow OSHA to move forward with enforcing the ETS, or
• Modify the order, effectively ruling that just part of the ETS is invalid.
For employers, the uncertainty over the flurry of filings and uncertain deadlines is an unwelcome question mark heading into 2022. The original OSHA order stipulated a Jan. 4, 2022 compliance deadline, with fines of up to $14,000 per violation for companies willfully violating the guidelines.
The Dec. 9 date — 30 days post-OSHA ruling — that companies would have had to issue mandates for their employees to be vaccinated by Jan. 4 has already passed. While the Sixth Circuit ruling is expected to come soon, that January deadline seems unrealistic at this point —even if the OSHA ETS is allowed to move forward. U.S. Supreme Court review would muddy the timeline further. It is uncertain whether a definitive answer from the highest court in the land would come before the ETS order’s May 4, 2022, expiration date.
In the meantime, the smart move for employers is to monitor events as they move through the courts, and to prepare as if the mandate will go into effect. Do not assume, regardless of how the Sixth Circuit — or the Supreme Court — rules, that those decisions will end the debate. Lots of states have already passed or will soon be passing laws at the state level that pertain to vaccine regulations and mask-wearing. Many states have their own version of OSHA, and we could certainly see more of those agencies address these issues in the very near future.
Thoughtful, proactive employers should be preparing a vaccination policy, complete with compliance and enforcement guidelines, a plan for how to communicate the policy to employees, to confirm who is and is not vaccinated, and other procedural details. The timing remains unclear, but with no clear deadlines and a federal agency that clearly feels a sense of urgency, any regulatory mandates could go into effect quickly following judicial review.
While many employers are understandably reluctant to invest in the kind of planning that takes time and costs money, the uncertain outcome and murky timeline makes this a case where investing modestly in preparation and planning would seem to be the smart and responsible move at this stage of the process.
—————
Patrice Arend is an employment & labor and litigation & dispute resolution partner at Jaffe Raitt Heuer & Weiss in Southfield.
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/subscriptions
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
––––––––––––––––––––
Subscribe to the Legal News!
https://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
