L E G A L U P DAT E By: Regina Koho
Attorney, Tennessee Valley Authority Office of the General Counsel
NOW YOU SEE IT, NOW YOU DON’T– THE SHORT LIFE OF OSHA’S “VACCINE-OR-TEST” RULE FOR LARGE EMPLOYERS Introduction As COVID-19 has continued to ravage the country, federal, state, and local governments have struggled with how best to address the virus and its debilitating effects on the nation’s health and economy. One bright spot has been the development of effective vaccines, which first became available in late 2020.1 However, like many COVID-19 measures, vaccines have become politicized, and American vaccination rates have languished as compared with other developed nations.2 In November 2021, the Biden Administration sought to boost the country’s vaccination levels by implementing an emergency rule that would apply to employers with 100 or more employees3 and required, in short, that employees either be vaccinated or submit to weekly COVID-19 testing. This effort was short-lived—a little over two months after its implementation, the U.S. Supreme Court stayed the rule, which ultimately resulted in its withdrawal by the Administration. The legal debate surrounding this rule highlights the stark divide among jurists—and the public—regarding the appropriate role of the federal government in combating this public health crisis. It also highlights the issues facing large employers that cross state lines, as they are now without a uniform vaccination standard to rely upon. The Occupational Safety and Health Administration’s Authority to Enact “Emergency Temporary Standards” In 1970, Congress enacted the Occupational Safety and Health Act,4 which also created the Occupational Safety and Health Administration (“OSHA”), a part of the Department of Labor. Broadly speaking, OSHA is tasked with ensuring “safe and healthful working conditions”5 through the enforcement of occupational safety and health standards.6 Typically, OSHA’s standards must “be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing.”7 However, a limited exception exists for emergency situations. OSHA may promulgate an “emergency temporary standard” (“ETS”) that takes effect immediately8 if it determines “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 that an “emergency standard is necessary to protect employees from such danger.”9 The ETS then serves as a “proposed rule,” and over the next six months, the agency proceeds “with the notice-and-comment procedures of a normal OSHA standard.”10 At the end of that process, either the same standard or a revised one is promulgated.11 Background Leading Up to Supreme Court Review of the “Vaccine-orTest” ETS On November 5, 2021, OSHA issued its COVID-19-related ETS, which, with limited exceptions, required employees of covered employers to become vaccinated or to wear masks at work and submit to weekly COVID-19 testing.12 The ETS applied to roughly 84 million people.13 Not surprisingly, numerous parties—businesses, states, trade groups, and nonprofit organizations, among others—were waiting in the wings to challenge the ETS. Multitudes of petitions for review were filed, with at least one arriving in each of the federal circuits.14 Although the petitions were ultimately consolidated in the Sixth Circuit,15 the Fifth Circuit stayed implementation of the ETS pending judicial review before this occurred.16 Following consolidation, the federal government moved to dissolve
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the Fifth Circuit’s stay.17 In a 2-1 decision, the Sixth Circuit granted the motion. The majority opinion, authored by Judge Jane Stranch, an Obama appointee, concluded that the ETS was well within OSHA’s authority to issue standards to protect “against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”18 Judge Joan Larsen, a Trump appointee, disagreed, “question[ing] whether the [federal government] c[ould] show that OSHA’s risk assessment and solution are tied to its authority—to protect employees against grave danger in the workplace.”19 The Court’s Ruling The ETS challengers then petitioned the Supreme Court, which expedited review.20 In a 6-3 unsigned ruling, the Court reinstated the stay on January 13, 2022. The majority concluded that the petitioners were likely to succeed on the merits of their argument that the ETS exceeded the Department of Labor’s authority, as its governing statute authorized “set[ting] workplace safety standards, not broad public health measures.”21 Although acknowledging that “COVID–19 is a risk that occurs in many workplaces,” the majority opined that “it is not an occupational hazard in most,” and that “[p]ermitting 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.”22 The Court’s three liberal justices believed that the ETS fell “within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”23 The dissent specifically disputed the validity of the limitation placed on OSHA’s authority by the majority, observing that its governing statute did not require that employees be exposed to the danger OSHA sought to guard against “only while on the workplace clock.”24 And in overturning OSHA’s decision, the dissent accused the majority of “substitut[ing] judicial diktat for reasoned policymaking.”25 Conclusion Following the Court’s ruling, the Biden Administration announced that the ETS would be withdrawn, which also terminated the legal proceedings surrounding its validity.26 Although it is possible that OSHA will attempt to enact a version of the ETS through its formal rule-making process, it would undoubtedly become entangled in similar legal challenges and perhaps abandoned once again.27 All of this creates confusion and uncertainty for large employers, particularly those who have employees in different states, as they are “subject to a patchwork of state and local laws” related to COVID-19, with some jurisdictions requiring vaccines and others prohibiting such mandates or other protective measures.28 Perhaps the bright spot for attorneys is that this uncertainty provides plenty of new opportunities for providing legal advice to employer clients! 1
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Ben Guarino et al., “The weapon that will end the war”: First coronavirus vaccine shots given outside trials in U.S., Washington Post (Dec. 14, 2020), https://www. washingtonpost.com/nation/2020/12/14/first-covid-vaccines-new-york/. See, e.g., Derek Thompson, How America Dropped to No. 36, The Atlantic (Sept. 26, 2021), https://www.theatlantic.com/ideas/archives/2021/09/how-america-lost-itslead-vaccination/620201/.
continued on page 15 March 2022
