After its normal release of opinions this morning that did not include a decision about whether to stay OSHA’s vaccinate-or-test ETS, this afternoon, at approximately 2:30 PM, the United States Supreme Court issued a per curiam decision reinstituting a stay of OSHA’s ETS. Here is a link to the opinion of the Court.
A per curiam decisions is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial, and in this instance, we know it was not that. There was also a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.
At first blush, it appears that the majority of the Court is saying that without a more explicit delegation of authority from Congress, OSHA can only regulate hazards that are fairly unique to the workplace, which could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS (see Heat Illness):
“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting 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.”
As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit. That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.
As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:
the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.
Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals. Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit. Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.
On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th. The Order does not provide for any additional briefing by petitioners or friends of the court. Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.
We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation. Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it. It is alive and well, at least until we hear from the Supreme Court.
Sixth Circuit Decision
In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee. Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion. Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.
“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETSforces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.
At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation. The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th. The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text. The regulatory text begins on PDF page 473. Also here is a Fact Sheet about the ETS issued simultaneously by the White House.
We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.
In the meantime, below is a detailed summary of the rule:
What is the stated purpose of the regulation?
The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”
Who is covered?
As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.
MSHA citations and orders can vary significantly in severity, penalty, and how they might impact your company, whether mine operators or independent contractors, moving forward. Contesting MSHA citations is a right that all operators have post issuance, whether that is done informally through MSHA’s 10-day conference program, or formally through the Federal Mine Safety and Health Commission. This presentation discussed the different avenues for contesting MSHA citations/orders, what aspects of the citations to look at when deciding whether to contest or not, and strategies for best protecting your company’s MSHA enforcement history.
MSHA citations and orders can vary significantly in severity, penalty, and how they might impact your company, whether mine operators or independent contractors, moving forward. Contesting MSHA citations is a right that all operators have post issuance, whether that is done informally through MSHA’s 10-day conference program, or formally through the Federal Mine Safety and Health Commission. This presentation will discuss the different avenues for contesting MSHA citations/orders, what aspects of the citations to look at when deciding whether to contest or not, and strategies for best protecting your company’s MSHA enforcement history.
On September 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.
The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.
We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage. To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.
For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall. First, Continue reading →
The line of demarcation between MSHA and OSHA jurisdiction is clear-cut and it is easy to determine which regulator has authority over your operations, right? While that is sometimes the case, where the MSHA/OSHA Interagency Agreement specifically outlines which agency has authority of which operation, there are most definitely gray areas. Whether looking at where the mining process ends and manufacturing beings, or what is the exact definition of mineral milling and how is it applied, there are frequently questions and concerns regarding MSHA/OSHA jurisdiction. However, frequently employers just accept the status quo or agency determination without question. This presentation will help employers ask the right questions regarding MSHA/OSHA jurisdiction at their facilities and determine whether or not challenging the agency in control is merited and worthwhile.