Timeline of OSHA's COVID-19 Vaccination, Testing and Face Covering ETS
By Susen Trail | 01/11/2022
Federal OSHA's Congressionally assigned scope is protection of employees from hazards created within the workplace by work processes and work materials.
For every past pandemic, OSHA has made the distinction that general protective measures are under the purview of the Department of Health. This is the first time OSHA has stepped into the public health arena.
To clarify the difference, 1910.501 applies to workplaces where there are no tasks assigned by the employer that create an increased risk of exposure when compared to the employee's risk of exposure outside of work under the same exposure proximity and duration. Consequently, this is not an occupational hazard, it is a public health hazard.
This departure from OSHA's prior norms has led to a court challenges. In this blog, we provide a chronological history of the Vaccination, Testing, and Face Covering ETS.
- November 5th - Effective date of the ETS.
- When the case was filed there were 27 states as well as other business and religious groups challenging the constitutionality of the ETS.
- November 6th - The U.S. Court of Appeals for the Fifth Circuit granted a temporary stay on enforcement of the ETS.
- White house Spokesperson Jen Psaki relays Biden's directive to employers to ignore his administration's court order and continue to advance the vaccine mandate.
- November 12th - A three-member panel of the Fifth Circuit re-affirmed the stay, with the court ordering OSHA to "take no steps to implement or enforce" the ETS "until further court order." This order included fairly severe language, such as:
- "The mandate is staggeringly overbroad"
- "…raises serious constitutional concerns…"
- "…likely exceeds the federal government’s authority."
- "The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and worders)"
- November 16th - All lawsuits against the ETS were aggregated and sent to the Sixth Circuit Court of Appeals.
- November 18th - White House press secretary Psaki relayed the second announcement from Biden to employers "Our message to businesses right now is to move forward with measures that will make their workplaces safer and protect their workforces from COVID-19," Psaki said on Nov. 18. "That was our message after the first stay issued by the Fifth Circuit. That remains our message and nothing has changed. We are still heading towards the same timeline. The Department of Justice is vigorously defending the emergency temporary standard in court and we are confident in OSHA's authority."
- November 23rd - OSHA filed a motion with the Sixth circuit court to dissolve the Fifth circuit court’s stay on the ETS. Provision of documents supporting OSHA's motion to dissolve the stay were filed by December 7th and all those generally in support of dissolving the stay were to provide a response to the court no later than December 10th.
- November 24th - Biden administration filed a motion to speed up the response process. Employers using the OSHA website to review the standard would see no indication of the Court Ordered stay, it appeared to be fully operational.
- December 3rd - The Sixth Circuit denied the Biden administration's motion for a change of venue and denied their second motion to expedite the court proceedings.
- December 8th - A bipartisan vote (52 - 48) passes in the Senate to repeal the Emergency Temporary Standard. However, the resolution must pass the House of Representatives AND it must be signed by President Biden.
- December 17th - The Sixth Circuit Court overturned the Fifth Circuit Courtss stay of the implementation by employers and enforcement by OSHA of 1910.501 Vaccination, Testing, and Face Coverings. Three of the sixteen 6th Circuit Court judges presided. Link.
- Note: The opinion, written by Judge Stranch focused on the justification for action over the pandemic rather than the substance of the case. This is demonstrated by one of his few statements on the standard. "The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace."
- Judge Gibbons wrote the supporting opinion:
- He begins by stating "Reasonable minds may disagree on OSHA's approach to the pandemic, but we do not substitute our judgment for that of OSHA"
- He ends by stating "Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur."
- The dissenting opinion was written by Judge Larsen:
- "As the Supreme Court has very recently reminded us, 'our system does not permit agencies to act unlawfully even in pursuit of desirable ends.' Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority's theme is that questions of health science and policy lie beyond the judicial ken. I agree. But this case asks a legal question: Whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA's emergency rule pending final review."
- December 22nd - Supreme Court announced they will hear arguments for both the OSHA ETS 1910.501 and the Center for Medicare and Medicaid Services Healthcare Worker Vaccine Mandate. Oral arguments were held on January 7th. Rulings likely after January 10th.
- We are currently awaiting the ruling from the Supreme Court.
If you are concerned about the massive paperwork requirements in 1910.501 and 1910.502 please know that our documentation and data management app is in development. This app will enable employees to digitally submit pictures of their documentation for weekly COVID test results, vaccination proof, the COVID log and other recordkeeping requirements as well as report potential COVID infections.
If you are interested in being notified when the product is available, please let us know by filling out the contact form at this link.