The Mandate
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”)[1] mandating employers with 100+ employees require their employees to undergo a COVID-19 vaccination or take weekly COVID-19 tests and wear a mask at work. Employee vaccination requirements were set to begin on January 4, 2022. Failure to comply with the ETS would have resulted in OSHA issued penalties.[2]
The ETS broadly applies to 66% of the nation’s private sector workforce, as it was not limited by industrial sector or distinguishing factors such as position held, place of work, or hours worked.[3] The applicability of the ETS was based on the employer’s size measured in terms of number of employees.[4] Any employer with 100+ employees would have been subject to the ETS. This includes all employees (even part-time employees) across all locations, “regardless of employees’ vaccination status or where they perform their work.” “For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold.” Additionally, where two or more related entities handle safety matters as one company, they may be regarded as a single employer for purposes of the ETS. The only exceptions to the ETS’s counting requirement were independent contractors and employees from staffing agencies (which are counted by the staffing agency itself).
Some workers are counted for the 100-employee threshold but are not required to follow the ETS’s vaccine mandate. Examples include employees working exclusively from home and employees working exclusively outdoors. OSHA’s example for how this will work is:
If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees. However, the standard’s requirements would only apply to the 50 employees who work in the office at least part time around other individuals, and not to those 100 employees working exclusively from their homes.[5]
OSHA emphasized exclusivity. For example, OSHA set the following criteria for work to be considered exclusively outdoors: 1) the employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS), 2) the employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle), and 3) the employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home). “The employee’s work must truly occur ‘outdoors,’ which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.”[6]
Challenges
On November 6, 2021, the day after the ETS was released, the United States Court of Appeals for the Fifth Circuit issued a temporary stay on the ETS pending briefing and expedited judicial review. The Fifth Circuit issued the stay after 41 petitioners, including the States of Texas, Louisiana, Mississippi, South Carolina, and Utah, filed a petition for review of the ETS seeking a permanent injunction.[7] On November 12, 2021, the Fifth Circuit reaffirmed its initial stay.[8]
In reaffirming, the court considered factors under the “traditional stay standard,” and held that “[e]ach of these factors favors a stay here.”[9] The court primarily focused on factor one — whether the stay applicant has made a strong showing that he is likely to succeed on the merits. To succeed on the merits, the Petitioners needed to show that the ETS was unlawfully enacted. Ultimately, the court overwhelmingly found that the Petitioners are likely to succeed on the merits. In reaching its decision, the court accentuated one overarching theme — that the ETS is both overinclusive and underinclusive. However, on December 17, 2021, pursuant to 28 U.S.C. § 2112(a), the challenges were consolidated in the United States Court of Appeals for the Sixth Circuit, which reversed the stay, and reinstated OSHA’s ETS. The ETS was set for promulgation in early 2022, but was stopped again when the United States Supreme Court reinstated the stay issued by the Fifth Circuit.
Battle of the Circuit Courts
Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards under 29 U.S.C. § 655(c). Under that statute, the Secretary of Labor is required to authorize an ETS when: A) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards and B) that such emergency standard is necessary to protect employees from such danger.[10] For the ETS to be lawfully enacted, these two elements must be satisfied.
In analyzing these elements, the Fifth Circuit broke the two elements down into four parts. These four parts require the ETS to: 1) address “substances or agents determined to be toxic or physically harmful” — or “new hazards” — in the workplace; 2) show that workers are exposed to such “substances,” “agents,” or “new hazards,” in the workplace; 3) show that said exposure places workers in “grave danger;” and 4) be necessary to alleviate employees’ exposure to gravely dangerous hazards in the workplace.
Concerning the first part, the Fifth Circuit was persuaded by the State of Texas that COVID-19, an airborne virus, does not fit within the purview of “substances or agents” and “toxic or physically harmful.” Specifically, the court relied on the principle of noscitur a sociis — a word is known by the company it keeps. The court explained that OSHA could not “shoehorn” an airborne virus into a “neighboring phrase connoting toxicity and poisonousness.” The court then relied on past cases involving OSHA to “shed light on the intended meaning of these terms.”[11] Finally, the court rejected all OSHA arguments that COVID-19 is a “new hazard,” because OSHA had previously represented to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.”[12]
The Sixth Circuit Court of Appeals disagreed. The Sixth Circuit defined an agent as a “chemically, physically, or biologically active principle.”[13] According to the Sixth Circuit, this definition includes viruses, with the requirement being that the agent (virus) is either toxic or physically harmful. Here, the virus causes bodily harm, and thus, “falls within OSHA’s purview.” Further, the Sixth Circuit disagreed with the Fifth Circuit that COVID is a “new hazard.” The Sixth Circuit relied on the fact that the COVID virus is continuing to “spread, mutate, kill, and block the safe return of American workers to their jobs.” Additionally, OSHA’s practical decision to wait for Federal Drug Administration (“FDA”) approval of the vaccines before issuing the ETS does not preclude a finding that the hazard is new.
For the second part — exposure — the Fifth Circuit similarly found that OSHA failed to meet its burden. Specifically, OSHA failed to meet its burden because it could not show that all workplaces covered by the ETS are exposing workers to COVID-19. The court acknowledged the myriad studies showing workplace “clusters” or “outbreaks,” but ultimately found that “OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have ‘outbreaks’. . . . [T]his kind of overbreadth plagues the Mandate generally.”
The Sixth Circuit stated that the Fifth Circuit is “simply wrong” that OSHA must show all workplaces are exposed, because if that were true, “no hazard could ever rise to the level of ‘grave danger’ because a risk cannot exist equally in every workplace.” According to the Sixth Circuit, such a requirement would render the entire ETS meaningless because OSHA cannot be expected to conduct on-the-spot investigations of every user to determine if exposure is occurring.
The Fifth Circuit found the third part — grave danger — to be equally problematic. Using OSHA’s own words against it, the court pointed out that the ETS itself concedes that the effects of COVID-19 range only from “mild to critical.” Additionally, OSHA once stated before the ETS was issued that it “prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.”[14] The court also compared a previous case involving OSHA, where OSHA concluded that high level exposure to cadmium, which can cause cancer and kidney damage, was not a grave danger.[15]
The Sixth Circuit disagreed, stating that the decision to determine a precise level of risk is a policy consideration that belongs to the Agency. “In cases where OSHA determines that a substance is sufficiently harmful that a grave danger would be created by exposure, OSHA must be allowed to issue necessary regulations.”[16] The Sixth Circuit relied on the Center for Disease Control (“CDC”) and multiple state public health organizations’s reports that show workplaces have a heightened risk of exposure, along with an extensive severity of harm, including “serious illness” that have “long-lasting effects on health.”[17]
For the last part — necessity — the court found that OSHA failed to establish that the ETS was necessary. Rather, it found that the ETS was “staggeringly overbroad” and at the same time underinclusive. “[T]he Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.” Comparing a 28 year-old trucker with a 62 year-old prison janitor, the court found that OSHA’s ETS failed to address “much of this reality or common sense.” Again, the court used OSHA’s own language against it. Specifically, OSHA had previously stated that “an ETS is not necessary. . . because an ETS would actually be counterproductive.”[18] Further, OSHA stated that its “time and resources are better spent issuing industry-specific guidance that adds real substance and permits flexibility.”
Again, the Sixth Circuit disagreed, relying on Indus. Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir 1974), which stated that “OSHA may lean ‘on the side of overprotection rather than underprotection’ when promulgating an ETS.” The court also focused on the purpose of an ETS, which is to provide quick, immediate protection to workers facing a grave danger. Further relying on previous court precedent, the Sixth Circuit emphasized that OSHA need not proceed workplace-by-workplace or conduct on-the-spot investigations for every possible worker effected by the ETS. The Sixth Circuit also disagreed with the Fifth Circuit’s “common sense” example, by highlighting that the ETS was promulgated to help prevent employees from transmitting the virus to other employees. An issue which is not age dependent.
Besides OSHA’s stances on an ETS, the court also focused on the ETS’s underinclusive nature. Specifically, the court asked whether a mandate for workers that does not include companies with 99 or less employees is truly an emergency. The court concluded it is not likely an emergency, stating that “this kind of thinking belies the premise that any of this is truly an emergency.” The Sixth Circuit responded that if this argument is taken at full value, then OSHA should implement more regulations and not less. The OSHA ETS was tailored to implicate employers that are “best positioned to actually effectuate the standard.” That decision does not preclude the idea that COVID is an emergency.
The Supreme Court’s Decision
The Supreme Court ultimately sided with the 5th Circuit, but for seemingly different reasons. The Supreme Court focused on the fact that the ETS challengers were “likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.”[19] Instead of delving into an exhaustive review of the stay factors like the 5th and 6th Circuit, the Supreme Court focused on the fact that agencies are creatures of statute.[20] More specifically, the Supreme Court looked at how they “expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”[21] Ultimately, the Supreme Court did not believe that the Occupational Safety and Health Administration Act (Act) authorized OSHA’s ETS promulgation.
The Act authorizes OSHA’s secretary to set “workplace safety standards, not broad public health measures.”[22] “[T]he Act’s provisions typically speak to hazards that employees face at work. . . . and no provision of the Act addresses public health more generally.” The sheer breadth of OSHA’s ETS was its downfall, as the Supreme Court noted that OSHA does have authority to regulate “occupation-specific risks related to COVID-19.”[23]
Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.[24]
The dissent argues that the ETS is no different than OSHA regulations concerning other day-to-day dangers, such as fire or sanitation. Justice Kavanaugh addressed these concerns by pointing out the ETS’s permanent effects, “[a] vaccination, after all, ‘cannot be undone at the end of the workday.’”[25] Fire regulations impact an employee while on the job, but end once the employee leaves the workplace; unlike the ETS which required a permanent vaccination. The dissent also argues that OSHA was given congressional authority in the American Rescue Plan Act of 2021 (ARP).[26] However, the ARP was signed into law on March 11, 2021, and “of course said nothing about OSHA’s vaccine mandate, which was not announced until six months later.” OSHA’s attenuated reliance on the ARP was not sufficient congressional authorization, as the Supreme Court again noted that such a broad public health regulation from an agency designated to regulate workplace safety requires unequivocally express language. Therefore, the court granted the stays presented and the ETS will not take effect on private employers, for now.
[1] See COVID-10 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (codified as 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).
[2] Id. (Under the ETS, OSHA may issue a penalty for each instance of noncompliance).
[3] Id. at 61,403.
[4] Id. at 61,513.
[5] Occupational Safety and Health Administration, Emergency Temporary Standard: Frequently Asked Questions (Nov. 17, 2021) https://www.osha.gov/coronavirus/ets2/faqs.
[6] Id.
[7] In fact, every regional Court of Appeals had a challenge to the ETS.
[8] BTS Holdings, L.L.C. v. OSHA, No. 21-60845 (5th Cir. filed Nov. 12, 2021).
[9] Id. (Traditional stay factors: 1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits, 2) whether the applicant will be irreparably injured absent a stay, 3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and 4) where the public interest lies).
[10] 29 U.S.C. § 655(c)(1).
[11] Past cases included: UAW v. OSHA, 938 F.2d 1310, 1314 (D.C. Cir. 1991); and Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980).
[12] Previous representations from OSHA D.C. Circuit Brief at 25.
[13] In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, No. 21-7000, et al. (6th Cir. filed Dec. 17, 2021).
[14] See Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989).
[15] See Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980).
[16] In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, No. 21-7000, et al. (6th Cir. filed Dec. 17, 2021) (citing Dry Color Mfrs. Ass’n v. Dep’t of Labor, 486 F.2d 98, 102 n.3 (3rd Cir. 1973)).
[17] Id. (“[W]orking age Americans (18-64 years old) now have a 1 in 14 chance of hospitalization when infected with COVID-19.”)
[18] Previous statement from OSHA D.C. Circuit Brief at 16, 17, 21, and 26.
[19] Nat’l Fed’n of Indep. Bus., et al. v. Dep’t of Labor, Occupational Safety and Health Admin., et al., 595 U.S. ___, No. 21A244, slip op. at 5 (January 13, 2022).
[20] For example, the 6th Circuit’s opinion on the issue was 33 pages; whereas, the Supreme Court’s opinion was only 9 pages.
[21] Nat’l Fed’n of Indep. Bus., et al. v. Dep’t of Labor, Occupational Safety and Health Admin., et al., 595 U.S. ___, No. 21A244, slip op. at 6 (January 13, 2022).
[22] Id. (emphasis in original).
[23] Id. (see also the ETS for medical personnel that was not overturned).
[24] Id.
[25] Id. at pg. 7.
[26] Pub. L. 117-2, 135 Stat. 4.
