OSHA's new vaccine mandate could hit roadblocks in the courts
An emergency temporary standard regarding COVID-19 vaccine policies for businesses may face challenges.
Private employers seeking to challenge the Biden administration’s vaccine mandate for businesses could have some precedents on their side, based on earlier legal challenges to emergency steps taken by the Occupational Safety and Health Administration. And what does exist is not entirely favorable to the federal agency.
“It would be charitable to call it a mixed success,” Seyfarth labor and employment senior counsel Scott Hecker said of OSHA’s past defense of its so-called emergency temporary standards, or ETS.
Last week, the Department of Labor’s OSHA announced a new emergency temporary standard requiring employers to develop and implement a mandatory COVID-19 vaccination policy. The ETS covers employers with 100 or more employees.
The Occupational Safety and Health Act of 1970 allows the Labor Department’s secretary to issue rules and standards for workplace safety. That is usually done after a period of public notice and comment. But the act also authorizes a bypass of those procedures to issue an emergency rule.
The act’s Section 7(f) allows anyone “adversely affected” by a standard to challenge it within 60 days in a federal appeals court for the circuit in which the person lives or maintains his or her principal place of business.
OSHA has used its ETS authority 11 times in its history, and courts have not reviewed a challenge to one since an asbestos ETS in 1983, according to a September report by the Congressional Research Service. Pending in the U.S. Court of Appeals for the D.C. Circuit is a challenge to the June COVID-19 ETS for health care industry workers.
In the nine reviewed by courts, judges fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case, according to the CRS report. Of the five cases that were not challenged or that were fully or partially upheld by the courts, OSHA issued a permanent standard either within the six months required by the act or within several months of the six-month period and always within one year of the promulgation of the ETS.
“I think this would be the 11th [ETS], counting the health care one issued in June,” Hecker, formerly with the Labor Department, said. The problem for OSHA in the past, he explained, is that it didn’t meet the statutory hurdle for issuing the ETS.
The OSHA act requires the agency to make two determinations in order to issue an ETS:
- 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 the emergency standard is necessary to protect employees from such danger.
“This is a high bar set by Congress,” Hecker said. “This was supposed to be a grave danger that needed to be addressed without the typical notice-and-comment rulemaking allowing for stakeholder input. All we have on the latest ETS is just the science and data and OSHA’s justification.”
Todd Logsdon, a partner at Fisher & Phillips and co-chair of the firm’s Workplace Safety and Catastrophe Practice Group, agreed most challenges will involve whether OSHA met that high hurdle. But he said the agency did “a really good job” in what it published. In its nearly 500-page announcement, the agency doesn’t get to the actual standard until page 473.
“Everything before that page is like the filing of a brief, laying out its justification for the ETS,” Logsdon said.
He said one issue the appellate courts will address is whether OSHA can establish that COVID-19 is still a “grave danger.” The White House now reports that 70% of adults have been vaccinated, which was the target back in the spring, he said.
“If we’re there, the question is are we still in grave danger?” he asked. And, he added, another issue may be the 100-employee threshold. “Why is the grave danger only there?”
Hecker and Logsdon expect the state attorneys general who have threatened to challenge the COVID-19 ETS to seek both injunctive relief and to vacate it.
“This is an instance where if you don’t get an immediate injunction and the legal process plays out, it may not matter if the ETS is vacated or overturned because people are already working towards compliance,” Hecker explained. “Any challenge will want to succeed early to have an impact.”
The U.S. Court of Appeals for the Fifth Circuit, considered the most conservative appellate court in the country, might be the “most friendly” circuit court for the mainly Republican state attorneys general, suggested Logsdon.
And will the U.S. Supreme Court be drawn into the legal fight? The justices in September refused to allow the Centers for Disease Control and Prevention to extend a Biden administration eviction moratorium after finding the CDC did not have the statutory authority to deprive landlords of their property rights.
Logsdon said although he is not an expert in the eviction area, he does not see the challenge to the ETS as a question of OSHA’s authority but primarily a question as to whether it has met the law’s “grave danger” and “necessity” requirements.
Whether the Supreme Court is drawn into this legal fight, Hecker said, “may depend on which way it goes, who wins or loses. If the injunction fails, there may be a move up the chain to have the Supreme Court review this and get the law of the land laid out clearly, or if there is a conflict among the appellate courts.”
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