On Friday December 17, 2021, the United States Sixth Circuit Court of Appeals, in a 2 to 3 decision, reversed the stay imposed by the Fifth Circuit Court of Appeals on the Occupational Safety and Health Administration’ s (OSHA) Emergency Temporary Standard (ETS). The ETS, in place until May 2022, requires covid injections or testing and masking of workers in companies with 100 or more employees. The Sixth Circuit decision is here. The Fifth Circuit Court of Appeals decision is here.
Emergency applications to stay the ETS were immediately filed with the Supreme Court to be reviewed by Justice Kavanaugh assigned to hear petitions from the Sixth Circuit Court of Appeals. Justice Kavanaugh can grant the petitioners’ applications and stay the ETS pending review by the Court or refer the applications to the full Court for a decision. One hopes the Supreme Court will act quickly to give employees and employers direction.
OSHA’s authority under 29 U.S. Code § 651 is to deal with “personal injuries and illnesses arising out of work situations,” to address “occupational safety and health problems,” and to “reduce injuries and disease arising out of employment.”
Agencies have regulatory authority to the extent delegated by Congress. The burden of proof is on the agencies to show the authority claimed. When there is an unprecedented assertion of authority, the agency in question must show Congress meant it to have the authority. Exceeding the bounds of delegation corrodes the democratic legitimacy of administrative rules.
In its decision, the Sixth Circuit focused on the word Health not the word Occupation. The ruling should fail at the Supreme Court because OSHA asserted authority beyond that delegated by Congress. The Supreme Court recently struck down the CDC's eviction moratorium finding the CDC exceeded its authority finding that “it strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”
In Dissent, Judge Joan Larsen wrote that OSHA exceeded its statutory authority because “Congress has clearly marked the perimeter of OSHA’s authority: the workplace walls.” Since COVID-19 “exists everywhere an infected person may be—home, school or [the] grocery store, to name a few, how can OSHA regulate an employee’s exposure to it?”
Judge Larson pointed out that the rules’ premise is that the covid injection works. She also looked at the concept of “grave danger”:
Here, a quick look at the evidence raises an eyebrow. OSHA has determined that no vaccinated worker is in “grave danger,” whereas all unvaccinated workers are. 86 Fed. Reg. at 61,434, 61,419. But the government’s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64. See Rates of COVID-19 Cases and Deaths by Vaccination Status, supra, at 10.5 So an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not. One of these conclusions must be wrong; either way is a problem for OSHA’s rule.
Here are the current death tallies from the CDC:
What if the “grave danger” turns out to be a mandatory injection itself?
For workers and employers not wanting mandated injections OSHA has an alternative to in the policy:
The OSHA COVID-19 Emergency Temporary Standard (ETS) on Vaccination and Testing generally requires covered employers to establish, implement, and enforce a written mandatory vaccination policy (29 CFR 1910.501(d)(1)). However, there is an exemption from that requirement for employers that establish, implement, and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering in lieu of vaccination (29 CFR 1910.501(d)(2)).
Workers can claim medical and religious exemptions to these employer policies. Employers must engage in an evaluation of reasonable accommodations with the employee. If an employee can be accommodated without undue hardship, they must be accommodated.
Employers should know that the original January 4, 2022 deadline has been extended to January 10, 2022:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
Everyone can comment on the final rule. Submit comments identified by Docket No. OSHA-2021-0007 electronically at https://www.regulations.gov, the Federal e-Rulemaking Portal. Follow the online instructions.
We will be on Kathryn Huwig’s Beyond the Data to discuss this and other Covid related legal questions tonight at 8pm.