By Guy Burdick
Attorneys for the U.S. Department of Labor (DOL) November 23 asked a federal appeals court to lift judicial restrictions on an Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers. The emergency rule was indefinitely stayed November 12 by the U.S. Court of Appeals for the 5th Circuit before lawsuits were consolidated and moved to the 6th Circuit appeals court in Cincinnati.
The DOL asked that the 6th Circuit lift the stay, allowing OSHA to implement and enforce the emergency rule while court challenges continue. The ETS would “save thousands of lives and prevent hundreds of thousands of hospitalizations,” the DOL argued in its filing. The DOL asked that the 6th Circuit appeals panel dissolve the 5th Circuit panel’s stay and allow OSHA to proceed with the emergency rule’s implementation.
The Labor Department also offered the court an alternative: leaving the stay in place but modifying it to allow a requirement for face coverings and testing in private sector workplaces to reduce the risk of workplace transmission of COVID-19. The DOL also suggested that the appeals court leave in place the emergency rule’s preemption of state and local bans of employer vaccination mandates to give employers the option of requiring their employees to get vaccinated.
The Labor Department asked for, at minimum, a clarification of the stay and asked that OSHA be allowed to take internal steps necessary for the rule’s implementation, such as preparing employer guidance and training agency employees who run call lines or conduct inspections.
In the filing, the government’s arguments for dissolving the stay included:
- The petitioners’ suits are unlikely to succeed on their merits because OSHA reasonably concluded that the emergency standard is necessary to address the grave danger of COVID-19.
- The 5th Circuit incorrectly interpreted the Occupational Safety and Health Act when it suggested OSHA cannot address workplace dangers of an airborne virus that exists both inside and outside the workplace and that OSHA may only regulate chemical and physical hazards.
- The government disagreed on the 5th Circuit panel’s Constitutional concerns surrounding the ETS when the court concluded that the agency’s action exceeded the federal government’s authority under the Constitution’s Commerce Clause.
The 5th Circuit also had argued in its stay that OSHA could not now issue an ETS because it had not issued a COVID-19 ETS in May 2020. The Labor Department countered in its latest filing that the vaccination and testing ETS was developed and issued based on new information, both full Food and Drug Administration approval of the COVID-19 vaccines and evidence that voluntary efforts have been inadequate to protect workers from COVID-19 exposures.
The White House first announced plans for an ETS on September 9 as part of a federal COVID-19 response plan that included vaccination orders for federal employees and contractors and Centers for Medicare and Medicaid Services (CMS) requirements for COVID-19 vaccinations for workers in healthcare settings that receive Medicare or Medicaid reimbursement.