Court Reinstates Biden’s Vaccine Mandate for Large Employers

December 18, 2021

A federal appeals court has overturned a ruling from last month blocking the implementation of the Biden administration’s COVID vaccine mandate for large employers, reinstating the mandate. On Dec. 17, 2021, a three-judge panel for the Sixth Circuit Court of Appeals voted 2-1 to reinstate OSHA’s Emergency Temporary Standard (ETS).

Court: Pandemic Places Workers in Grave Danger, Justifying ETS

In the decision by U.S. Circuit Judge Jane B. Stranch, the Cincinnati-based court found that OSHA had demonstrated that the COVID-19 pandemic places workers in grave danger, which was sufficient grounds to implement the ETS. Judge Stranch explained that it would be inappropriate to second-guess OSHA’s determination given the substantial evidence and peer-reviewed scientific studies in support of the determination. In light of the highly transmissible Delta and Omicron variants, Judge Stranch noted that the need for the ETS has only been underscored in recent weeks.

The Court ultimately concluded that challengers to the ETS have not shown a likelihood of success on the merits of their claims. OSHA is authorized to issue emergency temporary standards, regulations that go into effect immediately, upon a showing of “grave danger” to workers. Judge Stranch stated that it would be “difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”

Judge Stranch was joined by Judge Julia Smith Gibbons in the majority. In a brief concurring opinion, Judge Gibbons emphasized the limited role of the judiciary over policymaking responsibilities and echoed Judge Stranch’s sentiment that they are not in a position to substitute their judgment for that of OSHA. Judge Joan Larsen penned a lengthy dissent where she emphasized that the issues here are not beyond the scope of the judiciary. Judge Larsen noted that this is a case examining whether Congress authorized the action taken by OSHA, which is the “bread and butter of federal courts.”

Vaccine Mandate Was Previously Blocked by Fifth Circuit

Previously, the Fifth Circuit Court of Appeals had blocked the ETS from taking effect soon after it was released in November. The Louisiana-based Fifth Circuit stayed the ETS due to statutory and constitutional concerns and later reaffirmed its decision on Nov. 12, 2021 following objections by the United States government, calling the ETS “staggeringly overbroad.” The Sixth Circuit was then randomly selected in a lottery by the U.S. Judicial Panel on Multidistrict Litigation to preside over any further litigation surrounding OSHA’s ETS. Since its release, the ETS has been challenged nationwide by many groups, including states, religious organizations and business owners, mainly questioning OSHA’s authority to issue the ETS.

Emergency Petitions Filed With Supreme Court Over Vaccine Mandate

Immediately following this decision, several emergency petitions were filed with the United States Supreme Court to reimplement the stay on the ETS. OSHA’s 490-page regulation governs employers with 100 or more employees and will affect approximately 84 million workers nationwide. Under the ETS, covered employers are required to mandate COVID-19 vaccines and/or weekly COVID-19 testing procedures.

Vaccine Mandate Penalties Will Begin Jan. 10, 2022

On Dec. 18, 2021, the Biden Administration announced that enforcement of the ETS will be delayed due to the uncertainty caused by legal challenges. Previously, employers were required to mandate COVID-19 vaccines by December 6 and implement regular testing for unvaccinated employees by January 4. In light of this announcement, the Labor Department will not issue penalties until January 10 and will not enforce the COVID-19 testing rules until February 9 so long as the employer is making reasonable efforts to comply.

While the future of the ETS remains uncertain, businesses with more than 100 employees are encouraged to prepare to move forward with compliance in the event that the ETS withstands further legal scrutiny. KJK will continue to closely monitor the situation and will provide further updates as new developments arise. For more information or to discuss how to prepare your business for the ETS, please contract Rob Gilmore at rsg@kjk.com or 216.736.7240.