The Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, imposes a “vaccinate or test” mandate for private employers (the “vaccinate or test” ETS). From the announcement by President Biden on September 9, 2021 asking OSHA to implement the “vaccinate or test” ETS to present day, the feasibility of complying with the “vaccinate or test” ETS has been called into question by numerous states and business organizations. The status of the current “vaccinate or test” ETS is currently unknown while the Supreme Court juggles with competing oral arguments, which took place on January 7, 2022. This review of the historical attempts to implement Emergency Temporary Standards and the current proposal by the Biden Administration offers private employers some insight into what to expect moving forward.
What is an Emergency Temporary Standard
Section 6(c) of The Occupational Safety and Health Act of 1970 (the OSH Act) provides the authority for OSHA to issue an ETS without having to go through the normal rulemaking process. The implementation of an ETS bypasses the standard notice and public comment/hearing requirements typically associated with a rule proposal from an administrative agency. Once implemented, OSHA should begin a full rulemaking process designed to put into action a permanent standard based on the ETS within six months.
Section 6(c)(1) of the OSH Act requires that OSHA consider the following two factors:
that employees are exposed to grave danger from exposure or substances or agents determined to be toxic or physically harmful or from new hazards; and
that such emergency standard is necessary to protect employees from such danger.
In summation, for an ETS to survive judicial review, employees must be exposed to a grave danger and an ETS must be necessary to protect employees.
Historical Review of OSHA’s Attempts to Implement an ETS
OSHA has attempted to implement an ETS standard on nine separate occasions. On three occasions, the standard went unchallenged. Of the other six standards, only one fully survived judicial review. The following is a summary of the challenged standards and the outcome of each challenge:
CHALLENGED OSHA EMERGENCY TEMPORARY STANDARDS
Subject of ETS
Name of Challenge/Case
Florida Peach Growers Ass’n v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974)
Dry Color Mfrs. Ass’n v. Department of Labor, 486 F.2d 98 (3d Cir. 1973)
Twelve Upheld, Two Vacated
Taylor Diving & Salvage Co. v. Department of Labor, 537 F.2d 819 (5th Cir. 1976)
Industrial Union Dep’t v. Bingham, 570 F.2d 965 (D.C. Cir. 1977)
Prior to 2021, the most recent attempt by OSHA to implement an ETS occurred in November of 1983, when OSHA attempted to implement an ETS lowering the permissible exposure limits of asbestos to employees. Shortly thereafter, the Fifth Circuit, in Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984), issued a stay, invalidating the asbestos ETS largely because OSHA failed to show that the proposed standard was necessary considering existing protections in place for employees. The failure of OSHA to pass the 1983 asbestos ETS largely curtailed OSHA’s willingness to attempt to pass any ETS. Accordingly, the agency has not attempted to enact any policies since 1983 via the most dramatic avenue available to it until the most recent attempts by the Biden Administration.
The “Vaccinate or Test” ETS
In response to the ongoing Covid-19 pandemic, on September 9, 2021, President Biden announced the “vaccinate or test” ETS for employers of more than one hundred (100) employees. In essence, the “vaccinate or test” ETS requires that employers either: (1) require that all employees obtain a vaccination (unless the employee qualifies for a medical or religious exemption); or (2) provide employees with the option/choice of either providing proof of vaccination or participate in once-weekly testing.
“Vaccinate or Test” ETS Legal Battle
The “vaccinate or test” ETS received immediate pushback from a number of sources, with concerns regarding the actual “grave danger” presented to employees from Covid-19 and the “necessity” of the ETS being placed squarely in the spotlight. A legal challenge to the ETS originated in the Fifth Circuit, where the Court ultimately stayed the “vaccinate or test” ETS. Effectively, this decision prevented the “vaccinate or test” ETS from taking effect until a full legal challenge was heard.
On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay, reinstating the “vaccinate or test” ETS. The Sixth Circuit wrote, “the [“vaccinate or test”] ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” In re MCP No. 165, No. 21-7000, --- F.4th ---, 2021 WL 5989357 (6th Cir. 2021).
The decision of the Sixth Circuit was immediately challenged by a coalition of 26 trade groups (along with several other applicants, including numerous States), which requested the Supreme Court of the United States stay the Sixth Circuit’s decision. Briefs were submitted to the Supreme Court on December 30, 2021 and oral argument was held on January 7, 2022.
Current Status of the “Vaccinate or Test” ETS
As of the writing of this article on January 10, 2022, the Supreme Court has yet to issue any guidance on the “vaccinate or test” ETS. Subjectively, most pundits reporting on the oral arguments seem to believe that the Supreme Court will take some action staying the ETS. As of this moment, however, the “vaccinate or test” ETS is in effect and employers subject to the mandate should begin complying with the requirements of the ETS. This OSHA Fact Sheet outlines the requirements of the OSHA ETS. Of course, if you have any questions or concerns, please feel free to reach out to the employment law attorneys at Crivello Carlson for assistance.
Should the Supreme Court issue any guidance, this article will be updated accordingly.