|Footnotes for this article are available at the end of this page.
On November 6, 2021, two days after the Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated COVID-19 Vaccine & Testing Mandate Emergency Temporary Standard (the “ETS”), the Fifth Circuit Court of Appeals (the “Fifth Circuit”) in B.S.T. Holdings, L.L.C. et al. v. Occupational Health and Safety Administration et al., No. 21-60845, granted the Petitioners’ emergency motion to stay the enforcement of the ETS. In that order, described in more detail here, the Court cited to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit then affirmed that stay in a more detailed order issued on November 12, 2021. In addition to the Fifth Circuit litigation, states, private employers, and trade associations across the country filed similar challenges in virtually every United States Court of Appeals. Due to the number of challenges in different circuits, the Judicial Panel on Multidistrict Litigation, a special body that manages multidistrict, federal litigation, consolidated the cases into one challenge before a single circuit chosen by random lottery. On November 16, 2021, the Sixth Circuit Court of Appeals (the “Sixth Circuit”) was chosen to hear the ETS challenges and all of the various cases were transferred to that court.
The Sixth Circuit Case
Following the transfer to the Sixth Circuit, on November 23, 2021, OSHA filed an emergency motion seeking to dissolve the Fifth Circuit’s stay and allow OSHA to enforce the ETS while the Sixth Circuit decided the merits of the myriad challenges. On the evening of December 17, 2021, after an expedited briefing schedule in which many of the various Petitioners opposed OSHA’s motion, the Sixth Circuit granted OSHA’s motion. In a 2‑1 decision, the Sixth Circuit dissolved the stay put in place by the Fifth Circuit, which will now allow OSHA to proceed with enforcement of the ETS while the various challenges still are pending.1
In its opinion, the Court accepted many of the arguments advanced by OSHA in seeking to dissolve the stay. As an initial matter, the Court concluded that the Petitioners did not have a strong likelihood of success in their various legal challenges to the ETS. For example, it held that the Occupational Health and Safety Act “plainly” gave OSHA the authority to take action to protect workers from viruses, such as COVID-19, that exist both within and outside of the workplace. The Court also agreed that OSHA had likely met the requirements for issuing an emergency temporary standard, as it was justified in determining that the current situation presented by COVID-19 constituted an emergency, that workers faced a “grave danger” from exposure to COVID-19, and that the ETS was necessary to protect workers. On the various constitutional challenges, the Court held that it was not likely that the Petitioners would succeed on their arguments that Congress had exceeded its authority under the major questions doctrine or the non-delegation doctrine, or that the ETS violated the Commerce Clause by regulating individual activity or infringing on the states’ police power.
The Sixth Circuit indicated that the low likelihood of success on the merits was sufficient on its own to dissolve the stay, but also stated that the irreparable harm that would befall the public due to the imposition of the stay far outweighed the potential harm to employers. The Court noted that the “harm” outlined by all of the Petitioners was speculative and failed to consider the various options employers had for compliance or to seek a variance if they truly could not, or did not think they should have to, comply with the ETS. It balanced this “speculative” harm against the importance of continuing to take efforts to curtail the spread of a deadly virus and cited to the statistics presented by OSHA indicating that the ETS could save 6,500 lives and prevent 250,000 hospitalizations in just six months. Overall, the Sixth Circuit determined that the public interest and potential harm far outweighed the Petitioners’ arguments against the ETS.
What Happens Next?
On the litigation front, the fate of the case will likely move, at least temporarily, to the hands of the United States Supreme Court (the “Supreme Court”). Immediately following the Sixth Circuit’s ruling dissolving the stay, many of the Petitioners sought relief from the Supreme Court. Multiple Petitioners have sought an emergency stay from the Supreme Court or, alternatively, a writ of certiorari for immediate review by the Supreme Court, a request that deviates from the Supreme Court’s usual practice of accepting cases because the Sixth Circuit has not yet entered its final judgment on the merits of the ETS challenges. If the Supreme Court refuses to issue a stay or take the case on a writ of certiorari, the Sixth Circuit’s ruling dissolving the stay will remain in effect, and OSHA will be allowed to proceed with its enforcement of the ETS while the Sixth Circuit determines the merits of the various legal challenges.
At the same time, OSHA has indicated that it intends to move forward with enforcement of the ETS (subject, of course, to any action by the Supreme Court). In a statement issued on December 18, 2021, OSHA indicated that it will provide some leeway in enforcement due to the uncertainty that has been lingering during the past month and a half since the ETS came into effect. OSHA specifically stated that it will not issue any citations for non-compliance with the ETS before January 10, 2022, and will not issue any citations related to non-compliance with the testing component of the ETS until February 9, 2022, as long as “an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”2 With the upcoming holiday season, however, OSHA has not given employers much time to get their vaccination plans in place and determine vaccination status if they have not already done so.
Planning Ahead — What Does This Mean for Employers?
Notwithstanding the remaining uncertainty (i.e., whether the Supreme Court will act to halt the enforcement of the ETS), we recommend that employers who otherwise are covered by the ETS move forward with their plans to comply with its provisions, given the upcoming enforcement date of January 10, 2022. This means that employers need to determine their employees’ vaccination status, set up vaccine policies (including those relating to time off to get vaccinated), and prepare to comply with OSHA’s recordkeeping requirements by January 10th if they have not already done so. Additionally, if an employer chooses to allow testing as an option, it needs to make at least conditional plans to comply with that portion of the ETS by February 9, 2022, pending a ruling from the Supreme Court. We also recommend that employers continue to monitor the pending proceedings as things may change quickly as the Supreme Court decides whether to take action.
If you have any questions about the ETS, setting up a compliant policy, and/or the status of the Sixth Circuit litigation, please contact one of the members of AGG’s Employment Team.
 The full text of the Sixth Circuit’s opinion is available at https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf
 OSHA’s full December 18, 2021 statement is available at https://www.dol.gov/newsroom/releases/osha/osha20211218