Vaccine mandates

Thoughts on Sixth Circuit OSHA Vax-or-Test Mandate Stay Decision and What Comes Next (Updated)

The question of whether to stay the BIden Administration rule requiring large employers to mandate vaccinations or testing is now before the Supreme Court.

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Friday evening, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the stay barring implementation of the Occupational Safety and Health Administration's Emergency Temporary Standard requiring large employers to mandate vaccination or regular testing for COVID-19. (Josh Blackman noted the decision here.) The stay had been entered by the U.S. Court of Appeals for the Fifth Circuit before challenges to the rule were consolidated in the Sixth Circuit. Earlier this week the Sixth Circuit also denied a petition for initial hearing en banc by an 8-8 vote.

The first applications for emergency relief were filed at One First Street almost immediately. Numerous states and interest groups challenging the OSHA rule filed emergency applications for a stay of the rule, in addition to petitions for certiorari before judgment.

The Sixth Circuit opinion vacating the stay was written by Judge Stranch, written by Judge Gibbons, who also wrote a brief concurrence. Judge Larsen dissented. Although the panel split 2-1, half of the Sixth Circuit joined Chief Judge Sutton's dissent from denial of the en banc petition.

Unlike the Fifth Circuit opinion imposing the stay, both Chief Judge Sutton and Judge Larsen's opinions focused more narrowly on OSHA's statutory authority without unnecessary forays into broader constitutional questions or overbroad claims. On the Sixth Circuit, the judges honed in on the language of the OSH Act, how that language has been interpreted and applied by OSHA and  the courts over the past fifty years.

Judge Stranch's opinion vacating the stay was also carefully reasoned, but was also sloppy at points. For example, at page 29 Judge Stranch writes that OSHA tailored the ETS by excluding workplaces where the risk is significantly lower, including those where employees are working exclusively outdoors, remotely from home, or where the employee does not work near any other individuals," citing 86 Fed. Reg. 61516. This is wrong. OSHA's rule does not exempt such workplaces. Rather, as OSHA makes clear on the very page Judge Stranch cites, the exemption "depends on the working conditions of individual employee."

In my view, the dissenters have the better of the argument. While OSHA likely has the authority to impose more stringent rules to prevent the spread of COVID-19 in the workplace, the actual ETS OSHA issued is difficult to square with the agency's statutory authority.

Insofar as one thinks the statutory question is a close one, the major questions doctrine may tilt the scales. As the Supreme Court has made clear in a number of decisions (and most recently in its decision rejecting the CDC's eviction moratorium), courts should be wary of broad assertions of agency authority, particularly where an agency seeks to exercise authority it has not identified or utilized previously. The idea here is that agencies only have that regulatory authority that Congress has delegated to them, and the onus is on the agency to demonstrate that such authority exists. The broader, more unusual, or less precedented the assertion of  authority is, the greater the burden on the agency to show it was delegated the authority it asserts. In effect, courts must engage in a "step zero" analysis to assure themselves that an agency has the authority it purports to exercise before worrying about whether the agency exercised that authority in a reasonable or acceptable way (or so I argue in this forthcoming book chapter).

For these reasons, insofar as the justices find the statutory question a close one, I suspect the major questions doctrine will make the difference with them as well. As noted, the Court's majority cited such concerns when invalidating the CDC's eviction moratorium. The Court further signaled its interest in this approach to interpreting regulatory statutes by accepting certiorari in a set of cases concerning the Environmental Protection Agency's authority to regulate greenhouse gases from power plants in which the major questions doctrine will have a starring role.

Assuming the Supreme Court does take up the OSHA ETS, either to impose a stay or accept certiorari (if not both), I suspect the Court will rule against OSHA and, in effect, put an end to the rule. Under the OSH Act, an ETS may only be in place for six months, before it must be replaced with a permanent rule (adopted after notice and comment). So if the rule is stayed, it may expire before it ever really takes force.

The Sixth Circuit may have given OSHA good news on Friday, but the outlook for the OSHA vax-or-test ETS is still not a good one.

UPDATE: Given some of the comments I have received I thought it was worth digging a little bit deeper into some of the considerations that will affect whether the Supreme Court intervenes.

When the Supreme Court was first asked to block the CDC's eviction moratorium, Justice Kavanaugh cast the deciding vote against enjoining the rule, opting to let the policy expire on its own accord, while warning that (unless Congress were to authorize a moratorium) a renewed CDC effort would be struck down. Is it possible that the Supreme Court would take the same course here? I do not think so, for a few reasons.

First, when the Supreme Court first confronted the eviction moratorium, it was due to expire within one month. The OSHA ETS, on the other hand, has a fair amount of time left. Although the ETS is "temporary," it lasts for six months, and because it took effect in early December, it will last until May (longer were a Court to allow OSHA to toll the standard in light of the Fifth Circuit's stay).

Second, compliance with OSHA's ETS is, in many respects, more "permanent" than the CDC eviction moratorium. While a landlord could evict a tenant when the moratorium ended, once employees are vaccinated, that cannot be undone. So, as when the Court stayed the Clean Power Plan, I suspect some justices will be concerned that letting the OSHA standard stay in place will allow the agency to get the benefits of its rule without meaningful judicial review.