OSHA’s Emergency Temporary Standard Requiring COVID-19 Vaccination or Weekly Testing for Large Employers Shut Down, but First a Bumpy Rollercoaster Ride

Issue March/April 2022 April 2022 By Andrea E. Zoia and Michelle M. De Oliveira
Labor & Employment Law Section Review
Article Picture
From left: Andrea E. Zoia and Michelle M. De Oliveira

In the context of an again-surging COVID-19 virus, on Nov. 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccination or weekly testing requirements. This followed on the heels of the Biden Administration’s announcement of its COVID-19 Action Plan, titled “Path Out of the Pandemic,” directing the Department of Labor to issue the emergency standard. 

OSHA may issue an emergency standard, bypassing the typical period of public notice and comment, only in circumstances where it can establish that employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and the emergency standard is “necessary to protect employees from such danger.” Before the COVID-19 pandemic, OSHA had issued emergency standards only nine times. Six were challenged in court, and only one was fully upheld. Despite the 473-page explanation in support of OSHA’s authority to issue an ETS requiring weekly testing or mandatory COVID-19 vaccination for large employers, OSHA was ultimately unable to meet the necessary threshold.

Anyone “adversely affected” by an OSHA-issued emergency standard may challenge it within 60 days of its issuance, and several challenges were filed immediately after its release. On Nov. 6, 2021 — just two days after the ETS’s issuance — the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay, pending briefing and judicial review. Just a week later, the Fifth Circuit affirmed its stay, holding that the ETS’s promulgation exceeded OSHA’s statutory authority. 

In response to the Fifth Circuit’s stay, on Nov. 16, OSHA announced that it was suspending all implementation and enforcement of ETS-related efforts. 

Subsequently, a lottery sent the ETS’s destiny to the Sixth Circuit so that the challenges could be heard on a consolidated basis. The Sixth Circuit lifted the stay on Dec. 17, 2021. The Sixth Circuit, relying on sections of the OSH Act and other OSHA regulations that expressly discuss diseases, felt that OSHA had the authority to implement an ETS to slow the spread of COVID-19. The Sixth Circuit did not find the ETS to be a novel expansion of the agency’s authority, but rather “an existing application of authority to a novel and dangerous worldwide pandemic.” For many, the decision seemed well reasoned and sound. To others, absurd. 

Regardless of whether the Fifth or Sixth Circuit’s decisions resonated, the flurry of litigation and inconsistent analysis left employers without a clear indication of whether the rule — which imposed an affirmative obligation on employers to comply with notice, record-keeping and procedural requirements in hand with the shot-or-test rule — would ultimately be enforced, and what efforts, if any, should be undertaken in the meantime. Nonetheless, the court’s decision to lift the stay meant that employers needed to revisit their efforts to ensure compliance with the ETS. Such efforts, however, were not long-lived. 

On Jan. 13, 2022, in a 6-3 decision, the Supreme Court of the United States stayed the ETS’s implementation, halting enforcement pending further review and a ruling from the U.S. Court of Appeals for the Sixth Circuit and, perhaps, a further appeal to the Supreme Court. The court held that the parties opposing the ETS “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” The court explained that, although Congress has given OSHA the authority to regulate occupational dangers, “it has not given the agency the power to regulate public health more broadly,” and “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” 

The decision noted that vaccination is not something that can be “undone at the end of the workday,” highlighting that:

[a]lthough 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.

Employers then, once again, were able to take a deep breath and potentially shelve the preparations they had made to comply with the rule. 

Although the ETS’s stay was to remain in effect pending the Sixth Circuit’s review of the merits, on Jan. 26, 2022, less than three months after the rule was issued, OSHA formally withdrew its ETS. The withdrawal did not come as a surprise in light of the Supreme Court’s articulated reasoning in its decision.

While this decision and OSHA’s withdrawal of the rule finally gave large employers some of the clarity they were looking for, it appears that more OSHA-issued standards are on the horizon; this may not be the last we hear of an OSHA-mandated vaccine or testing standard. Indeed, in announcing the ETS’s withdrawal, OSHA stated that it was “not withdrawing the ETS as a proposed rule,” and that OSHA “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” Thus, it appears that OSHA is not taking a workplace or testing standard off the table.

Any future attempts at a vaccine or testing standard are likely to differ in scope and mechanics from the embattled ETS mandate. Such a standard must be narrowly tailored and targeted if OSHA wants to avoid repeating the litigation challenges that it endured with the ETS. 

Rather than issuing a new temporary standard, it is more likely that OSHA will address testing and vaccine requirements via the promulgation of a permanent standard, which will require notice, comment and an opportunity for a public hearing. Additionally, we foresee that OSHA’s forthcoming standard (or standards) will be tailored to risks present in different types of workplaces and specific risks that different employees may face. In an attempt to land an enforceable rule, OSHA will need to navigate around the issues the Supreme Court relied on in finding that the agency had exceeded its authority by attempting to apply broad public health measures in the workplace. The issues were, in part, as follows:

  • Although there were certain exceptions regarding employees of large employers who did not fall under the mandatory COVID-19 vaccination or weekly testing, the exceptions were “largely illusory” when applied, and the “regulation otherwise operate[d] as a blunt instrument.”
  • The ETS did not draw any distinctions “based on industry or risk of exposure to COVID-19.”
  • OSHA has “never before adopted a broad public health regulation of this kind[.]”
  • “[T]argeted regulations are plainly permissible[ ]” in circumstances in which COVID-19 “poses a special danger because of the particular features of an employee’s job or workplace[.]” 

Undoubtedly, these issues are a window into factors that OSHA will be expected to consider when promulgating workplace standards that employers are expected to follow in an attempt to control the risks that COVID-19 presents in the workplace. 

Employers should not forget, however, that despite the rollercoaster ride that the ETS has faced since its inception (dragging employers and employees along with it), OSHA’s general duty clause imposes a requirement that employers maintain a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” That clause remains intact — and employers should ensure it is considered when making policy decisions regarding what, if any, COVID-19 safety precautions they will implement.

Employers are accustomed to turning to established structures and processes to deal with challenges. Since March 2020, however, workplace challenges have surged to a new level — a level that most of us have not seen in our lifetimes. Employers and employees have been forced to overcome extreme uncertainties accompanying the COVID-19 pandemic and the upheaval in newly imposed legal obligations. This has led to unprecedented agility and flexibility being integrated into employers’ structures and processes. However, the rollercoaster journey of the ETS has made one thing crystal clear: when it comes to COVID-19, nothing appears to be set in stone. 

Andrea E. Zoia is a partner at management-side labor and employment firm Morgan, Brown & Joy LLP who handles a variety of employment matters facing businesses. A significant part of her practice involves providing day-to-day employment law counsel and advice. She advises in-house counsel and human resource professionals with wage and hour issues, workplace investigations, drug testing, hiring practices, employment policies and handbooks, reductions in force, and employee leave matters. When litigation is necessary, Zoia skillfully defends employers against workplace allegations such as employment discrimination, retaliation, wrongful discharge, Family and Medical Leave Act claims, breach of contract, and wage and hour class actions.

Michelle M. De Oliveira is a partner at Kenney & Sams PC in Boston. She focuses her practice on litigation and counseling aspects of employment-related matters, including without limitation, employment issues relating to COVID-19, wage and hour, restrictive covenants, leaves of absence, retaliation, discrimination and sexual harassment. She also counsels clients on disciplinary actions, internal investigations, and the drafting of employment policies and contracts. De Oliveira conducts trainings relating to discrimination, sexual harassment, and management practices. In addition to her employment practice, De Oliveira maintains a general litigation practice, representing clients in general commercial litigation matters. She is currently serving as the chair of the Massachusetts Bar Association’s Labor & Employment Section Council. De Oliveira is a graduate of Northeastern University and Northeastern University School of Law, and is a member of the Northeastern University School of Law’s Alumni/Ae Association’s Board of Directors.