It is now official! The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) will decide the merits of the COVID-19 vaccine mandate. In short, the Sixth Circuit “won” a Multi-District Litigation Lottery. The Lottery determined the circuit court to hear the arguments levied against the Occupational Safety and Health Administration‘s (OSHA’s) vaccine mandate and emergency temporary standard (ETS). The November 17th, 2021, announcement is on account of a November 12 stay placed on the ETS by the Fifth Circuit Court of Appeals (Fifth Circuit).

Overview of the COVID-19 Vaccine Mandate

Particularly, covered employers would develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopted a policy requiring employees to choose either to:

  • receive a COVID-19 vaccination; or
  • undergo regular COVID-19 testing and wear a face covering at work.

Specifically, the ETS would not require employers to pay for testing or face coverings. However, some employers will need to pay for testing to comply with other laws, regulations, and collective bargaining agreements. In addition, employers would provide paid time for workers to get the COVID-19 vaccine. Additionally, the ETS would require employers to do the following:

  • Determine the vaccination status of each employee by obtaining acceptable proof of vaccination;
  • Maintain records and a roster of each employee’s vaccination status;
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove such employees from the workforce, regardless of vaccination status, until they meet required criteria;
  • Ensure each worker who is not fully vaccinated tests for COVID-19 weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
  • Require that, in most circumstances, each unvaccinated employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Businesses that did not comply would face significant OSHA fines. Finally, employers must comply with:

  • most requirements within 30 days of publication; and
  • testing requirements within 60 days of publication.

Challenges to the ETS and Subsequent Lottery

Markedly, after OSHA’s release of the ETS, many district courts received challenges against the mandate. In fact, many entities filed challenges in every circuit court district (First to Eleventh) and the D.C. Circuit Courts. Generally, the circuit court that presides over the district where someone files a case becomes the court of record. In this situation, however, the Lottery determined which court would hear the dissenting arguments.

Previously, the Fifth Circuit stated that the ETS is “both overinclusive … and underinclusive.” In other words, the court ruled that the ETS doesn’t account for varying levels of COVID-19 exposure as a sweeping mandate. Simultaneously, it doesn’t attempt to shield employees with 99 or fewer coworkers from the same exposure. In essence, the court ruled that OSHA’s vaccine ETS does not constitute a “delicate exercise” of an “extraordinary power” under Section 6 of the OSH Act.

State Response to the Federal COVID-19 Vaccine Mandate

Meanwhile, while the federal government is preparing for a Sixth Circuit ruling, some state governments are reacting to the mandate. For example, on November 18th, 2021, Florida Governor Ron DeSantis signed anti-vaccine mandate legislation.

In general, effective immediately in Florida:

  • Private employer COVID-19 vaccine mandates are prohibited.
  • Employers who violate employee health protections face fines.
  • Government entities may not require COVID-19 vaccinations of anyone, including employees.
  • Educational institutions may not require students to be COVID-19 vaccinated.
  • School districts may not have school face mask policies and may not quarantine healthy students.
  • Students and parents may sue violating school districts and recover costs and attorney’s fees.

Additionally, according to JD Supra, Iowa, Tennessee, and Utah have all passed similar legislation.

Employer Takeaways

Overall, if the Sixth Circuit finds the ETS legal, OSHA estimates that it would cover two-thirds of the private sector. Meanwhile, within the 26 states and two territories with OSHA State Plans, the ETS would cover state and local government-employed public sector workers. At this time, affected employers should review their workplace policies in preparation for the possibility that the ETS will become law.