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

Friday night, a split panel of U.S. Court of Appeals in the Sixth Circuit vacated a stay that prevented the implementation of the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring large employers mandate regular COVID-19 testing or vaccination. Josh Blackman detailed the decision here. After challenges to the rule were consolidated by the Sixth Circuit, the U.S. Court of Appeals of the Fifth Circuit entered a stay. A petition for an initial hearing en banc had been denied by the Sixth Circuit in an 8-8 vote earlier this week.

One First Street received the first emergency relief applications almost immediately. Numerous OSHA-related states and organizations filed urgent applications to stay the rule.

Judge Stranch wrote Judge Gibbons’ brief concurring opinion in the Sixth Circuit vacating the stay. Judge Larsen dissented. The Sixth Circuit split the vote 2-1. However, the majority of judges joined Chief Judge Sutton in his disapproval from the denial.

Chief Judge Sutton and judge Larsen focused their opinions more on OSHA’s statute authority, rather than the Fifth Circuit decision that imposed the stay. 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.

The opinion of Judge Stranch vacating the stay, while well-thought out and sloppy in places, was not only poorly written. At page 29, Judge Stranch states that OSHA crafted the ETS to exclude workplaces with a significantly lower risk, such as those located far from other people or employees who work only outdoors. Reg. 61516. It is incorrect. OSHA does not allow such work places to be exempt from its rule. OSHA’s rule does not exempt such workplaces. Judge Stranch points out that OSHA clarifies on this page that the exemption is “dependent on individual employees’ working conditions.”

I believe the argument is won by the dissidents. OSHA may have the power to make more restrictive rules in order to stop the spread of COVID-19 at work, but the ETS OSHA actually issued is not consistent with its statutory authority.

If one believes that the statutory question may be a difficult one, then the major questions doctrine could tilt the balances. In a series of cases, the Supreme Court clarified that broad assertions of agency power should not be allowed. This is because agencies can only exercise the regulatory authority Congress delegated them. It is up to the agency to prove that it has such authority. 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. Courts must conduct a step zero analysis in order to ensure that the agency is authorized to do so. Then, they can worry about whether that agency exercises that authority in an acceptable or reasonable manner (or so I claim in my forthcoming book chapter).

These reasons are why, in so far as justices view the statutory issue as a difficult one, I think the major question doctrine will also make a difference. Like we noted, the Court majority cited these concerns in invalidating the CDC eviction moratorium. Further signaling its interest in this way of interpreting regulatory statutes, the Court accepted certiorari in cases involving the Environmental Protection Agency’s authority in regulation of greenhouse gasses from power plants. In these cases the major questions doctrine will play a prominent role.

In the event that the Supreme Court takes up OSHA ETS and either imposes a stay, or accepts certiorari (or both), I expect the Court to rule in favor of OSHA and end the rule. An ETS can only stay in effect for 6 months under the OSH Act before being replaced by a permanent rule. This must be done after notice and comments. If the rule is not stayed, it could be canceled and withdrawn before it becomes effective.

OSHA received good news from the Sixth Circuit on Friday. However, the prospects for OSHA’s vax-or test ETS are still dim.