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Biden’s COVID vaccine and testing mandate is reinstated. Here’s what that means

COVID-19 vaccination. (Dreamstime/TNS)
December 21, 2021

A battle in the appellate courts stunted the federal government’s ability to implement President Joe Biden’s COVID-19 vaccine and testing mandate for large employers — until now.

On Friday, Dec. 17, the 6th Circuit Court of Appeals put the rule back in play, lifting an earlier stay by the 5th Circuit Court of Appeals and allowing the Occupational Safety and Health Administration, or OSHA, to reinstate compliance deadlines.

But there’s not a clear path forward, as several petitions looking to block the rule have already been filed at the U.S. Supreme Court.

Here’s a look at how we got here and what comes next.

What is OSHA’s vaccine and testing rule?

Biden announced the vaccine and testing requirement in early September, directing OSHA to draft it as an emergency temporary standard, or ETS. Nearly two months later on Nov. 4, OSHA released the ETS in a nearly 500-page document.

OSHA said the rule was designed to preempt any state laws or executive orders that bar private employers from passing vaccine mandates. It requires employers with more than 100 employees to develop and enforce a policy mandating all workers get vaccinated against the coronavirus.

Some employers may elect to allow unvaccinated workers to get tested for COVID-19 every week instead, OSHA said, but those unvaccinated employees must also wear a face covering while at work.

The rule additionally allows for paid time off to get the vaccine and recover from any potential side effects.

What’s an ETS, and when can OSHA issue them?

There are several requirements for OSHA to issue an ETS — such as whether a “grave danger” exists in the workplace and if an emergency standard is necessary to mitigate that danger, Jordan Barab, former deputy assistant secretary at OSHA, told McClatchy News in an interview Nov. 4.

Barab said OSHA spent a considerable amount of time in its 472-page preamble to the 18-page ETS making the case that the COVID-19 pandemic meets those requirements.

The agency also has to establish the feasibility of its emergency standard, both economically and technologically. The U.S. already has the ability to test for and vaccinate against the virus, Barab said, meaning the requirement is technically feasibly. But OSHA also has to show the rule is affordable.

Barab said COVID-19 doesn’t pose a greater threat to large employers than small ones, but OSHA could argue those larger employers are better positioned to implement such a costly vaccine and testing program.

So instead of issuing a blanket requirement, the agency ensured the rule only applies to those companies with 100 or more employees and invited public comment about the feasibility of applying it to smaller workplaces, he said.

The ETS was met with near-immediate resistance, with dozens of challenges filed in the appellate courts a day after OSHA unveiled its plan. The fight was focused on several fronts, including whether the coronavirus pandemic constitutes a “grave danger” to the workplace, as OSHA said in its preamble.

Opponents also pointed to what’s known as the major questions doctrine — which says the courts will not defer to a federal agency’s authority on issues with vast economic and political impact, according to Travis Vance, who co-chairs the Workplace Safety and Catastrophe Practice Group at the national law firm Fisher Phillips.

In essence, those challengers argued the ETS goes well beyond workplace safety and is instead a public health standard that’s being implemented through OSHA, Vance told McClatchy News Nov. 5.

He said a third challenge comes in the form of the delegation doctrine, which argues the executive branch has impeded on the powers of Congress by issuing such a sweeping public health standard that should have been passed as part of a law by the legislative branch.

On Nov. 5, the Fifth Circuit Court of Appeals blocked the emergency standard from taking effect — a decision the court affirmed in a 22-page decision a week later, Fisher Phillips said in an FAQ detailing the fluctuating status of the mandate.

The Fifth Circuit covers Louisiana, Mississippi and Texas, but the order went into effect nationwide.

Sixth Circuit lifts the stay

After the Fifth Circuit decision, challenges in other circuit courts were still being considered. Those were consolidated and sent to the Sixth Circuit, which includes Ohio, Michigan, Tennessee and Kentucky.

In a 57-page opinion issued Dec. 17, the Sixth Circuit opted to dissolve the previous stay in a 2-1 split.

Circuit Judge Jane B. Stranch, who was appointed under former President Barrack Obama, penned the opinion with Circuit Judge Julia Smith Gibbons concurring. Gibbons was appointed by former President George W. Bush.

Circuit Judge Joan Louise Larsen, appointed by former President Donald J. Trump, dissented.

In her opinion, Stranch said OSHA has long had the “authority to regulate viruses,” including HIV or COVID-19, regardless of whether they are “unique to the workplace.” She also said the major questions doctrine didn’t apply because the emergency standard is “not an enormous expansion of (OSHA’s) regulatory authority.”

Stranch further said OSHA relied on “substantial evidence, including many peer-reviewed scientific studies” in determining that COVID-19 constitutes a grave danger.

“Based on the wealth of information in the 153-page preamble, it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace,” she said.

In her dissent, Larsen said the Labor Department lacks the authority to issue such a sweeping mandate.

She pointed to the rarity in which OSHA has issued emergency standards, with only 10 in the last 50 years — six that were challenged in court, five of which were struck down.

How did OSHA respond?

In a Dec. 18 statement, OSHA said it was “gratified” by the Sixth Circuit’s decision.

“OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace,” the agency said.

Because the legal challenges delayed implementation of the emergency standard, OSHA also said it would push back the compliance deadlines.

That means OSHA won’t issue any citations for noncompliance with any part of the ETS before Jan. 10. The agency also said it wouldn’t issue citations for noncompliance with the testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Under the original schedule, employers were required to have a monitoring and reporting plan in place by Dec. 6, and employees had until Jan. 4 to be fully vaccinated or to begin regular COVID-19 testing.

What happens next?

Dozens of challenges to the Sixth Circuit decision have already been filed at the U.S. Supreme Court, NPR reported.

According to the national labor and employment law firm Jackson Lewis, those petitioners say enforcement of OSHA’s emergency standard will cause “irreparable harm” — including labor shortages, lack of available COVID-19 tests and the “consequences of laying off vaccinated workers to financially support compliance.”

Emergency appeals such as this are handed to the Supreme Court justice assigned to the particular circuit, which, in this case, is Justice Brett Kavanaugh, Jackson Lewis said.

Kavanaugh can then “distribute the application to the full court to consider or decide the request on their own,” according to the law firm.

There are also the 22 state-specific OSHA plans to consider. Jackson Lewis said none of those states “have taken steps to enact an ETS.” According to OSHA, the states have 30 days after the emergency standard takes effect to adopt it or implement an independent plan that’s “at least as effective.”

“A State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS because OSHA has recognized in this ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces,” OSHA says on its website.

It wasn’t immediately clear if the previous Fifth Circuit stay — which was in effect until Dec. 17 — delays the adoption deadline for state plans, according to Jackson Lewis.

But the ETS will take immediate effect with the new compliance deadlines in the other 29 states under OSHA’s purview.


© 2021 McClatchy Washington Bureau

Distributed by Tribune Content Agency, LLC.