Litigation Update: the OSHA Vaccine Mandate

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Late in 2020, several pharmaceutical companies developed vaccines for Covid-19 that received FDA approval, first for emergency use and then for general use. Next came the question of whether the federal or state governments should mandate vaccination or leave that decision to individuals. The states have generally deferred to the federal government, and Congress punted punted the question to President Joe Biden. At first, he tried to persuade the public, and numerous people were vaccinated. In September 2021, however, the President changed course, expressing dissatisfaction with the rate of vaccination. Among other things, he ordered the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) requiring all employees at companies with 100 or more employees to be vaccinated or receive weekly negative test results to remain at the workplace. Numerous parties challenged the OSHA Vaccination Mandate. The U.S. Court of Appeals for the Fifth Circuit stayed the effect of the ETS, and OSHA agreed not to enforce it for the time being. All related cases have now been transferred to the Sixth Circuit, and the federal government has asked that court to dissolve the stay.
 
Featuring:
 
Paul Larkin, who is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies. Larkin works on criminal justice policy, drug policy, and regulatory policy.
 
Larry Stine, a Senior Principal in the firm of Wimberly, Lawson, Steckel, Schneider & Stine P.C., and an AV rated attorney, who enjoys a diverse practice in which he covers a broad range of labor and employment matters. Larry is the former Region IV Counsel for OSHA in the Office of the Solicitor for the U.S. Department of Labor. He is nationally known for his expertise in Occupational Safety and Health
 

Moderator: R. Pepper Crutcher, General Counsel to the Mississippi Manufacturers Association. Pepper Crutcher advises and advocates for a wide range of Southeast U.S., private sector employers. As the leader of the firm's Affordable Care Act practice, Pepper also helps employers, insurers, brokers, administrators and providers achieve ACA compliance and appeal ACA assessments. Labor negotiation and arbitration, OSHA, work site immigration enforcement, and intellectual property protection also are in Pepper's portfolio.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Webinar Call. Today, December 15, we discuss The Litigation Update: The OSHA Vaccine Mandate. My name is Guy DeSanctis, and I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us our moderator, R. Pepper Crutcher, a partner at Balch & Bingham, LLP, and chairman of The Federalist Society's Labor and Employment Law Practice Group. Throughout the panel, if you have any questions, please submit them through the question-and-answer feature or the Chat so that our speakers will have access to them for when we get to that portion of the webinar.

 

      With that, thank you for being with us today. Pepper, the floor is yours.

 

R. Pepper Crutcher:  Thank you, Guy. We are presenting this on behalf of both The Federalist Society Labor and Employment practice section and the Administrative Law section.

 

      Our first speaker will be Paul Larkin from the Administrative Law section. Paul is a Rumpel Senior Legal Fellow at The Heritage Foundation. He received his law degree from Stanford Law School. He's held numerous positions in the federal government including an assistant to the solicitor general of the Justice Department. He's authored two articles on the Biden administration's vaccine mandates that will be published in January of 2022. When we put this up on the website, let's try to include those citations. He's also the author of an article on the CDC eviction moratorium, "The Sturm und Drang of the CDC's Home Eviction Moratorium," 44 Harvard Law Journal of Public Policy 2021.

 

      Also speaking on behalf of the Labor and Employment section will be Larry Stine. Larry is a Senior Principal in the labor and employment law firm of Wimberly, Lawson, Steckel, Schneider & Stine in Atlanta, Georgia. He's a former regional counsel for OSHA. He specializes in OSHA wage and hour matters. Larry is co-author of two nationally recognized books available on Westlaw.com. One is Wage and Hour Law: Compliance and Practice and Procedures, and the other is Occupational Safety and Health Law: Compliance and Practice. Larry has handled the largest OSHA case, with about 4,800 citation items, and has been litigating OSHA cases since 1975.

 

      Viewers, this is how this is going to work:  Paul will start off with about ten minutes explaining to us the current litigation status of the OSHA Emergency Temporary Standard on COVID vaccination and testing. Then Larry will tell us what is the practical import for employers; that is, what does the standard require employers to do, and how are employers adjusting? About ten minutes each. And then I'll have a few questions; and then we'll let the speakers talk to each other, if they want, about points each raised; and then we'll open the floor for questions from the audience. You can use your Chat function to ask those questions, or you can ask those questions live, as you prefer. Recently, most people have been using the Chat functions. We'll direct those questions to the speakers as you choose or, if you don't choose, to them both for comment.

 

      Paul, the floor is yours.

 

Paul Larkin:  Well, thank you very much. I appreciate the kind words, and I appreciate the opportunity The Federalist Society has offered to try to give some people updates on where this litigation stands -- and litigation it definitely is.

 

      Once the OSHA mandate went into effect, numerous parties in various courts around the country brought suit in the circuit courts to try to have the mandate set aside. It's an unusual way to litigate these sorts of cases for people who are more accustomed to going immediately to a district court rather than to a circuit court. That's the way Congress intended this to work. I suppose, if there were factual issues that needed to be developed for one reason or another, the circuit court could send it to a district court for that, but right now we start out in the intermediate appellate courts.

 

      It began first in the Fifth Circuit because the Fifth Circuit acted very quickly. The Fifth Circuit entered an interim stay allowing the parties to be confident that nothing would change unless and until there was a full briefing on the issue. And then, after briefing on it, the CA5 entered a stay pendente lite pending the remainder of the litigation. Because there were numerous courts involved, since there were filings in all sorts of courts in addition to the CA5, the Judicial Panel on Multidistrict Litigation consolidated all the litigation in one circuit court and effectively transferred jurisdiction over the merits of the case from the CA5 and all the other courts to CA6. Now that the case is in the CA6, the government has gone back in and asked the CA6 to lift or modify the injunction that the CA5 imposed, and there have been further rounds of briefing in that regard.

 

      That additional briefing necessary to respond to the government's new motion is now complete, and so the CA6 is -- as an old professor and former colleague at the Justice Department once told me, the CA6 is now seized of the case, and what we have is a situation where we're waiting for them to hear. I checked Fox News before this event to see if the CA6 had entered an order on the government's motion, and, as of yet, there has been no such decision. I expect that the CA6 will try to act quickly because, if it were to disagree with the CA5 and modify the stay, or if there were a two-to-one decision and someone were writing a dissent, the court would still want to get this disposed of quickly so it could be set up to then move on to the merits. At that point, the CA6 will probably yet again expedite its consideration of this because the government wanted these mandates to go into effect immediately upon the issuance of this rule — that's why it's called an "Emergency Temporary Standard" — and postponing it would in effect nullify the opportunity that OSHA has to try to protect the public up front and immediately.

 

      So the bottom line is this:  The original order entered by the CA5 is still in effect. The case is now, however, in the jurisdiction of the CA6 which is considering the government's motion to eliminate or to modify in some way the injunction that the CA5 entered. I expect the CA6 will act expeditiously on that motion and then expeditiously again on the merits of the issue as to which there are two principal issues that are going to come up. One is, as a question of administrative law, is this ETS within the authority of OSHA to issue? Another is, even if OSHA has the authority, whether its decision was arbitrary and capricious.

 

      There will also be constitutional challenges raised to the issue assuming that OSHA has the authority to do it and that its rule is not arbitrary. But those would only be disposed of if the court at the outset decides that OSHA has the authority to do this. The government lost when it had similar litigation over the CDC home eviction moratorium, and, in my opinion, I think it's likely to lose again because OSHA does not have the authority to do this. As a practical matter, the government may have decided not to try to go back to the Department of Health and Human Services for it to come up with a source of authority since the government lost in the CDC litigation. But in truth, if any federal agency had the authority, it would be one of the health-related agencies like HHS in general or the FDA, the Food and Drug Administration, or the CDC, the Centers for Disease Control and Prevention. Those are the agencies that Congress has traditionally entrusted with medical judgments in this regard, and Congress has never given them the authority to impose a vaccination mandate. It's odd, therefore, in the extreme for OSHA to be doing this, and I think it's probably just as a result of a judgment that they went to the HHS well before, it didn't work, and they shouldn't try to go back.

 

      That being said, what I would now like to do is turn it back to you, Pepper, so that you can hand it over to Larry because Larry now will be able to fill people in on what is now happening and what will happen to the businesses out there who have to comply with this either now or if it's later upheld.

 

R. Pepper Crutcher:  Larry?

 

Larry Stine:  All right. Well, thank you, gentlemen. I get the pleasure of going through the OSHA regulation.

 

      There's two things going on: First is it's stayed. Nobody has to do it right now, but there's a 30-day and a 60-day period so that if the Sixth Circuit says the stay is off, you've got 30 days and 60 days to implement this. The other thing that you ought to take into account is that some of the states have state plans and can implement this regulation under state authority, such as California. Other states have dragged their feet on the old ETS standards. So we'll talk about the standard — because there may be some possibilities that it comes — and what you need to be doing and what the standard does. And I'm going to try to do that quickly in the ten minutes I've got.

 

      The OSHA standard is applicable only to employers of 100 or more employees. However, just so you know, that can mean if you've got 100 remotely located employees, you're covered. It's not 100 in an establishment; it's the total number of employees you have. Now they've made some exceptions to it already. One of them is, for the federal contractor COVID vaccine, those companies are exempted from it. Those who are covered supposedly by the Center for Medicare and Medicaid Centers standards, both of which are more stringent than the OSHA ones, would be exempted from the OSHA standards [inaudible 00:10:47] right now. Employees not working with others, those working from home and working exclusively outdoors -- but do understand, when they mean exclusively outdoors, they mean you don't go inside any place; you just hang around outside. And even on some of the buildings, once they're enclosed, although there's wide openings, they're taking the position that's not exclusively outside.

 

      So the way the regulation is set up is you have a mandatory vaccination plan or you decide you're not going to have everybody do it and that the employees that are not vaccinated will have a weekly test and have to wear face coverings.

 

      For the determination of the vaccine status, there's a couple of ways to do it. You can get a record of immunization from a healthcare professional or a pharmacy. You can get your little, one-inch COVID card. You can get immunizations from public health, state, or tribals. Or — this is the most interesting one of all — you can have the employees attest to their status if they've lost it or are unable to produce it.

 

      The interesting thing is that they have a very specific statement for anybody that signs it, and it -- basically, you have to have on your form which has the information about it, "I declare, certify, verify, or state that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccine status on this form may subject me to criminal penalties." And then, in the training session, you'll hear very briefly that you're instructed to train them about the criminal provisions of 18 USC 1001 and 17(g) of the OSHA Act.

 

      If I was an employer, though, I think I would have a little stack of attestation forms ready for those employees who want to sign it and claim they haven't done it. OSHA will accept those as being vaccinated. If you don't prove it, then you've got to be tested weekly.

 

      And you have to keep these records pursuant to another OSHA regulation, which is 29 CFR 1910.1020, which treats them as medical records. Basically, if you think of HIPAA and the privacy aspects of it, you have to keep it to a very narrow group of people. But you don't have to retain it for as long as those regulations require, just as long as this regulation stays in effect, however long that may be.

 

      The interesting thing about the testing is that one of the things they do allow is employee self-testing, but they don't allow employee self-testing and self-verification. So, in talking to some of the companies that are trying to figure out what to do with this, because the self-test kits are the cheapest, they are going to proctor self-tests. So they're going to go in and let the employees go ahead do the self-test and stick a Q-tip up their nose and put it in there and then hand it over to the employer so that it's a self-test but it's not a self-verification. And that is allowable, and that may be the cheapest way the companies can do it. Some of them which have clinics are proposing to have their clinics. But a lot of us will just have to wait to see what the employees get.

 

      One of the most interesting things about the OSHA standard is OSHA almost never, ever makes the employee pay for anything they require. But on this particular standard, they made an exception to their general rule, and they will allow you to charge the employee for the weekly testing. And in the Federal Register that talks about it, they were quite honest. They said that they wanted to do that because it might encourage the employees to get vaccinated. So the whole purpose of allowing employers to make the employees do it — it's for the purpose that it really was designed for — is to force the employees to be vaccinated.

 

      If the employees do not do the testing and do not have the vaccination, they are not allowed in the workplace. Now, the regulations are coy. They don't say you've got to fire them; they just say you can't let them come to work. So you tell me what the result is if I can't let an employee come to work. What you're going to do, you're going to, at a minimum, suspend them without pay while they are not doing either one of them. But we expect a lot of those folks will just quit and go to smaller employers.

 

      Also in the Act is a requirement to pay for vaccinations up to four hours of their regular pay and paid sick leave to recover if they have side effects from the vaccination.

 

      The testing -- every seven days; documentation is due seven days after that. And the interesting thing is, if you get a positive test, you get 90 days off from testing. But, after 90 days, you've got to start testing again even if you've had COVID, which is their rejection of the natural immunities which they reject in the Federal Register.

 

      If you get a positive result, you have to leave — and that includes the people who are vaccinated — until you get a negative nucleic acid amplification test, which is lovely, or you follow the CDC guidelines, or you get a return-to-work by a healthcare professional. But the employees are not required to pay for the COVID times. Even if you're vaccinated, they don't have to.

 

      They also require you to wear the mask, which are either a surgical mask or masks that are a little bit more than just a bandana around your face; there's actually a definition in it. And you can take it off when you're alone in a fully enclosed room, eating or drinking, or you're wearing a respirator, or you can prove it's a greater hazard.

 

      As to the training, you have to tell them what the standard is. You've got to hand out a CDC booklet, Key Things to Know About the COVID-19 Vaccine. I want to tell you that, when you hand these things out, I would recommend that you have a trash can that is empty of all trash so that, as employees go by and dump the booklets in the trash can, you can retrieve them to hand them out to the next group because my experience is going to be those CDC booklets are going to go in the trash can as they walk out the door. But that's what it requires. And you're required to tell them about the retaliation provisions and, as I noted before, the criminal provisions of 18 USC 1001 and 17(g).

 

      Now that was an eight-minute summary of the regulation. I don't think I could do it any quicker than that. But I am done with my ten minutes on the OSHA regs.

 

R. Pepper Crutcher:  All right. Larry, since you've got two minutes left, let me ask you a question that might occur to some of our viewers who might have looked at the record.

 

      By the way, the Sixth Circuit case number is 21-7000 for those of you who might want to go on PACER to look at it.

 

      OSHA said in its briefing, "Hey, look. This is not a big deal. This is certainly not unprecedented. Look at our biohazard rule." Larry, could you explain the biohazard rule a little bit for the people watching this who might not have ever practiced before OSHA?

 

Larry Stine:  Well, what they have in the regulations — and they use it for, like, lead, cadmium — there are some medical removal provisions so that, if something happens to an employee, they will remove them from the workplace. For lead, if their blood levels exceed 50 micrograms per milliliter, you have to remove them from work, but you have to pay them.

 

      Also in there, the only other thing that comes remotely close to a vaccine is, in the bloodborne pathogen regulations, they do have a provision for hepatitis B vaccinations. But the interesting thing -- what they did in the Federal Register, they said, "We will not make them do it." And they have a declination form in the regulations that allow the employees to decline that hepatitis B vaccination.

 

      So I think that's in answer to your question, Pepper.

 

R. Pepper Crutcher:  All right. Larry, do you have any questions for Paul? Paul, do you have any questions for Larry before I ask mine?

 

Paul Larkin:  I just have one for Larry. Larry, given the fact that OSHA, when they came out with this rule, didn't get an increase in the number of FTEs to go around the country and conduct inspections, is the administration essentially relying on people at work to dime out their boss about whether these things are actually being implemented?

 

Larry Stine:  Well, yeah. Basically, the problem is the OSHA staff in each state is relatively small. I think in the state of Georgia where we have 10 million people, we have 34 investigators. They can never get everywhere, so they're relying on complaints and going in and checking on that. It would be extraordinarily difficult for OSHA to actually be able to enforce this regulation. My expectation is what they would do is they would find one or two employers they investigate who are basically just giving them the finger, so to speak, and completely reviewing it and try to hit them with the hardest penalty they can and get publicity, which is kind of their normal way. If they get something, they want to kind of scare everybody because, "We picked you; we're going to hit you with a multiple hundred thousand dollars of fines, and don't let us find you in the same situation." That would be my expected enforcement policy for OSHA because they do not have the resources.

 

R. Pepper Crutcher:  So we're now to the moderator's questions, and I'll be quick about this so we can get to the building-up questions we have from the audience.

 

      Paul, when OSHA published this in the Federal Register on November 5, they published it both as an Emergency Temporary Standard and as an APA final rule. They could have, as early as December 6, announced that the ETS has been superseded by what has now become a final rule. Is there a reason, do you think, that they have not done that? And is it something they still might do?

 

Paul Larkin:  As to why they have not withdrawn the ETS and gone forward with it just as a final rule, I think they're just trying to keep hope alive that the courts will eventually either rule in their favor or that they can postpone the litigation long enough for more people to get vaccinated.

 

      As to whether they should do that, that depends on what their motivation for doing this in the beginning is. I mean, when you look at this it seems to me that, in all likelihood, the administration realizes it's going to lose in this litigation. It lost badly in the Supreme Court in the Alabama Realtors case because they tried to cram into a statute that didn't remotely address landlord-tenant relations authority to interfere in state law in this regard. If this case goes back up to the Supreme Court, I think the Supreme Court is likely again to say that OSHA, the administration, doesn't have authority to do this.

 

      The administration should have gone to Congress for this authority. So why didn't they? Well, there are at least three reasons why they didn't. One is the President wants to be seen as doing something. He promised the country he would end this problem and, with all the variations we now have, it certainly hasn't ended. But more importantly, if he focuses what everybody is looking at on the number of vaccinations rather than on the number of people who are now immunized, he can focus everybody's attention on outputs rather than outcomes. And for a politician, that's important. You can measure outputs; outcomes are a lot more difficult to measure. Take law enforcement. You can measure the number of arrests, the number of charges, the number of convictions, the number of fines. You can't as easily measure the effect on the crime rate from anything you do. Same thing here.

 

      I agree with Larry that what's going to happen is if somebody is turned in by an employee and OSHA can, they will probably hammer that company just to show that they're doing something in this regard. Politicians like to see good things done, but they, even more, like to see good things done that they can take credit for. And if they can take credit for any improvement in the number of vaccinations, they'll say they did their best.

 

      Plus, the government has stepped in to be the bad cop for all the employers that want to do this on their own, and they get to be the good cop. The employers can say, "You know, I wouldn't have required this for my employees, but the government is making me do it." So the government wants to be able to be the bad cop for as long as it can. And if nothing else, they can just kick the can down the road. Until the litigation is finalized, they can still hold over the head of everyone the threat of some sort of penalty as Larry talked about.

 

      But those three reasons are political justifications, not legal ones. And I think politics is what's driving the train, here, not law.

 

R. Pepper Crutcher:  Well, legally, is it true that if OSHA withdrew the ETS because it had been superseded by what's now become a final rule under the APA, that action would moot the current proceedings in the Sixth Circuit? Is that the case?

 

Paul Larkin:  Not necessarily, because keep in mind that what happened was you had lawsuits brought around the nation, and the parties are certainly going to ask the court to retain jurisdiction over this because all they're doing is changing the label that they put on these requirements. The opportunity that the statute gave them to impose an Emergency Temporary Standard didn't change their need to show that they had authority to do this or that it wasn't arbitrary and capricious. If the CA6 were to say, "Well, we're vacating the ETS because OSHA doesn't have the statutory authority to do this," that ruling would cover the final rule as well as the ETS. So the parties are going to probably want to make sure that they don't get jerked around by OSHA and doing this all over again from scratch.

 

R. Pepper Crutcher:  Larry, do you have anything to say in response to Paul's comments about that?

 

Larry Stine:  Well, the problem in part is that OSHA did something we've never seen before. They had an issue of COVID-19, and they issued an ETS on June 21, 2021, limited to the healthcare workers without vaccine mandates and without testing and having safety protocols. And then, a few months later, all of a sudden, they're changing their entire mind. And they've got some real issues internally because of the change of their positions because what happened between June 21, when OSHA decided that healthcare workers who were the closest to COVID didn't need vaccines and didn't need testing, and November 5 when they issued the new ETS? And of course, the answer is, on September 9, Joe Biden got on TV and said, "We're going to do this." And that quote had been duplicated in every COVID vaccine case I have seen so far in the Sixth Circuit, the CMS ones in the Eastern District of Louisiana, and the contractor ones in the Southern District of Georgia.

 

R. Pepper Crutcher:  A question for you again, Larry. I've been watching the Safer Federal Workforce website and the Office of Personnel Management website, and I think I have noticed that federal agency employers who are covered by their own presidential vaccine mandate appear to be slow-walking employee terminations for employees who are not vaccinated. Will OSHA allow employers subject to the ETS or the final rule to do the same, or will OSHA take a different approach do you think?

 

Larry Stine:  Well, it depends on which one. But for the OSHA ETS, the difference, Pepper, is there is a testing requirement, so I can continue to have unvaccinated employees as long as I'm testing weekly. Now, I don't know how many people are going to believe because I'm shoving a Q-tip up their nose once a week or they're having to do it themselves.

 

      But the issue with the federal employees and with the other two COVID vaccines, there's no out. You're either vaccinated or you're not. But will the employer slow-walk? The answer is yeah. I guarantee the employers will slow-walk it because, well, as you know as an employment lawyer and as I know, I don't have a client that's fully staffed. I've talked to poultry plants, and I've asked them how short are they of employees — and we're talking about unskilled workers — they're telling me 50, 100, 150 openings in the plant, and they're having to cut down on that. And the same thing is true with almost everybody in the country. Employers are put in a real lovely Hobson's choice:  "I lose employees or I lose capacity. How in the world am I going to do it?" The federal government is no different. They're placed in the same dilemma. And as you noted, in the Wall Street Journal yesterday, a whole bunch of hospitals that put the vaccine mandate in were very quick to withdraw them because they were losing employees and were having labor shortages.

 

R. Pepper Crutcher:  Yeah. I'll share with our audience something I shared with you in preparation for this meeting. There's an employer with about 15,000 or 16,000 employees in a manufacturing-type business that, for six months in 2021, ran a promotion promising to pay a bonus of $1,000 to anyone who would show proof of vaccination who hadn't already been vaccinated. Now, this is $1,000 for people who are making — counting benefits — somewhere between $15 and $25 an hour. That's a lot of money for those people. They thereby raised their vaccination percentage from 37 to 41 percent. There is some serious, hard-core resistance to becoming vaccinated in that population of employees which is causing employers to fear that, if forced to be vaccinated, they will quit.

 

      All right. Let's open our questions from the floor. A lot of questions I'm seeing about will the Sixth Circuit address this as a panel, or will they do so en banc from the first ruling? That sounds like a Paul Larkin question. Paul, what do you think?

 

Paul Larkin:  Well, it all turns on whether the full CA6 would like to have three judges look at it first. Why does the Supreme Court wait to allow an issue to percolate before the Supreme Court takes it up? Because it wants to get as many valuable opinions as possible on what the correct answer is. If the CA6 judges think that there is no benefit to waiting to see what a panel does, they'll vote to hear it en banc. If, however, enough of the judges think, "No. I'd like to have my colleagues take the first crack at this," then they won't. So it all turns on how much help each of the CA6 judges think they want or need before actually casting a vote on the matter.

 

R. Pepper Crutcher:  A good question that I think is in your wheelhouse, Larry:  So the employer makes employees pay for their testing at a very low wage level and a high enough test charge. That could suppress employees' pay below minimum wage for the workweek if the employer isn't allowed to credit itself for the cost of testing it charged the employee. Is that an FLSA problem?

 

Larry Stine:  Without a doubt, it's an FLSA problem because pursuant to the regulations, I'm requiring you to go get a test at your own cost; OSHA can say I can do it. But you can't let that cut underneath the minimum wage. So to the extent that the cost of the tests drops them below the minimum wage, it's a Fair Labor Standards Act violation without a doubt.

 

R. Pepper Crutcher:  Another good question from Robert Fitzpatrick is how is the whistleblower section of the OSH Act going to factor in this, do you think, Larry?

 

Larry Stine:  [Laughs] Well, that's a little bit more of a complicated question than you think. OSHA issued a regulation that incorporated the retaliation provisions which are also found in 11(c), which 11(c) has the shortest charge period of any statute on the face of the Earth; you've got to file your charge in 30 days. So what OSHA is trying to do -- the secretary is trying to do is he puts them in a citation -- issues a citation that goes beyond the statutory protections that Congress put in there. Nobody has challenged it yet because OSHA hasn't had the nerve yet to issue a citation under that particular regulation because, I think, they probably know they're going to run into, "This is a violation; you're not following your own statutory provisions." The other part of the retaliation is you've got to tell everybody. But they're being told so much now about the retaliation I think it's practically white noise.

 

R. Pepper Crutcher:  [Laughs] Jeffrey Wood is asking a good question; it sounds like one for you, Paul. Does OSHA have something at risk in this litigation more than just this particular standard? Is there a potential that the Sixth Circuit or the Supreme Court will do something that materially circumscribes what OSHA can do in the future because of this case?

 

Paul Larkin:  Absolutely. Government agencies have certain authority. Some of it's clear; some of it is hazy. It's often to their advantage to have that haziness out there because, from their perspective, it allows them to get things done without having to go to court. Every time a court limits what an agency can do, the agency's authority becomes less hazy at the periphery and more distinct, and by virtue of the fact that the court has limited them, it limits the agency's ability to engage in jawboning or threatening to try to get things done.

 

      I'm sure the CDC didn't like the fact that they were ordered essentially to issue a new rule even though the Supreme Court had politely said that you couldn't have an eviction moratorium without authority from Congress to do it. Why? Because the CDC is used to getting what it wants — the same as the FDA. You tell somebody to do something, somebody will generally go along with what the agency demands because they're afraid, first of all, of the adverse publicity, but secondly, they're afraid they might lose in court. Well, every time an agency loses in court when it's trying to expand its authority, it loses the ability to get things done without going to court. The same is true here.

 

      If the Supreme Court smacks down the administration for what they're doing here, that's a limitation that is going to affect OSHA in all sorts of other cases. And so, yes, somebody in OSHA probably volunteered this as a way of saying, "Well, this is the best we can do to try to help the President get done what he wants to get done." But that's probably somebody high up who's a possible political appointee. All of the people that have to deal with businesses on a daily basis and who try to engage in this strongarming or jawboning or however you want to describe it, they're probably not happy that now they're in litigation over this because they feel, if they lose, it's going to hurt them in everything else they do.

 

R. Pepper Crutcher:  Larry, we've got a question that looks like it's probably for you. There are accommodations available in the Federal Register publication of the ETS for religion and disability, right? And if so, how much wiggle room does that give to employers and employees?

 

Larry Stine:  There is, in the OSHA ETS, medical and religious accommodation. And, of course, what I have been telling my clients is that I'm going to be exceedingly liberal on religious accommodations — in other words, if it passed the smell test — because if I rule against them and end up firing them, I could end up with a Title VII religious discrimination case. But if I let them stay and they've got something there and I give it to them, OSHA is highly unlikely, with the limited resources they're going to have in enforcing this, to ever be looking at that particular issue. So I would be very liberal in how I granted religious accommodations and medical exceptions on that because, one, I can end up with a lawsuit if I deny one, and on the other one, I don't think OSHA is going to be in the business of litigating religious accommodations. They have no authority, they have no knowledge, and they'll be fish out of water.

 

R. Pepper Crutcher:  Paul, a couple of people are asking this: What does this case have in store, perhaps, for yet another change in Chevron deference or in whatever is left of the Auer deference after Kisor?

 

Paul Larkin:  Well, part of it will turn on whether or not the government pushes that theory. So far, in the pleadings that I've read that the government has filed, they haven't made an argument that, whether or not the statute permits this, Chevron certainly does. So if the government doesn't make the argument, that reduces the likelihood that the CA6 will address it on its own. It doesn't mean the CA6 won't. And if the CA6 does, it could say that were there no Chevron deference, we would, of course, give no deference to OSHA's interpretation here. The CA6 could try to make this into a Chevron claim -- a Chevron case. But the government is being very careful, I think, to try to avoid that because I think they realize these cares are not good vehicles to try to defend Chevron in this regard.

 

R. Pepper Crutcher:  So, Larry, here's a question that Jerome Penn (sp) asks to you directly, and I'll quote him: "Can you briefly explain why OSHA lacks the authority to mandate vaccinations when it has the authority to mandate many other active safety measures designed to reduce illness?"

 

Larry Stine:  Okay. Yeah, I can answer that there's two reasons for it. One of them is a statutory interpretation. Believe it or not, in the Occupational Safety and Health Act, there is authority for immunizations. It's in a section that gives limited authority to the secretary of HHS, when they're doing studies and reports on looking at different impacts of substances, that they can require vaccines, but they're required to pay it. So under the statutory interpretation, when you give limited authority, that limits their authority; they don't get any more general authority. So there's actually a very specific, very limited authority. So we don't have this in there.

 

      The other problem is that the immunization is really not directed to workplace safety. OSHA's authority is for workplace safety, and what they're really doing is they're looking at public health cases. There's a provision in the OSHA Act that says that if you're not a state plan — you're a federal plan — you, the state, can't issue workplace safety. And some of the very creative lawyers — as we all are — were arguing, when they got cited from the state in a public health standard in one of those states, that you can't do that anymore because OSHA has preempted you. And all the courts universally had said, "No; this is a community public health. OSHA's preemption is limited to workplace safety." So that's the reason why OSHA lacks the authority just to require vaccinations. Because it's trying to do public health, it doesn't have the authority under courts to survive. And in the Act, it's provided extremely limited authority for immunizations in a very narrow circumstance.

 

Paul Larkin:  Pepper, if I could, I would like to just add to what Larry said.

 

      One point is that the section where the term "immunization" shows up basically shows up as a way of saying that, if immunizations are required, you can't discriminate against someone on the basis of a religious objection. Well, that doesn't grant authority to OSHA to require immunizations. It just says, if there are immunizations, you can't discriminate against people. It doesn't give you the authority to do this to begin with.

 

      Plus, immunizations are materially different from the type of other requirements that OSHA can establish. If you have to wear goggles, if you have to wear a safety helmet, if you have to wear a gown, gloves, whatever, you can get rid of them at the end of the day. Vaccinations are materially different. They work only if they cross the skin, enter the body, and trigger a reaction in the immune system. You can throw away a gown at the end of the day; you can throw away T cells. That immunity that you now have is the result of a biochemical process that the body's immunological system creates to protect you in case things cross the skin barrier and get to one of the organs that are below.

 

      OSHA is allowed to protect you against the hazards that external types of protection can deal with: gloves, masks, hats, etc. Immunizations are entirely different. Congress has always, since the Biologics Act of 1902, entrusted decisions in that regard to the health agencies — to HHS or some component — and Congress didn't grant HHS this authority. If it had, the President would have just told the secretary of HHS to make it so; make sure everybody is ordered to be vaccinated. The reason they went to OSHA is they couldn't find the statute that allowed HHS to do this.

 

R. Pepper Crutcher:  John Sheller has a question that sounds like it's for Larry. Is the COVID test that you talk about — and let's focus on what you thought employers might do is to proctor self-testing in the workplace — would that be a case of an employer-mandated medical exam under the Americans with Disabilities Act?

 

Larry Stine:  It would be -- it falls into the exception of required for the job. For example, for respirators, employers can require employees to take a pulmonary function test to determine whether they can use the respirator, and that's allowed under the ADA as required by business necessity. So if the standard sticks and you've got to do it, it's business necessity. It will fall into that business necessity exception of the ADA, to answer that question.

 

R. Pepper Crutcher:  But you'd still have to keep the records of that testing confidential [Crosstalk 00:43:47].

 

Larry Stine:  Yeah. Those records are completely confidential. They're governed by what is the 1910.1020, which limits — it's kind of like OSHA's version of HIPAA — who can handle it, who can disclose it, how it's disclosed, all of those things. A lot of attorneys just shorthand say HIPAA applies to employers. Technically, it doesn't. It's 29 CFR 1910.1020 that applies to employers for the same information.

 

R. Pepper Crutcher:  I love getting threat letters from plaintiffs' lawyers who almost invariably spell HIPAA, "H-I-P-P-A."

 

Larry Stine:  Well HIPAA with employers doesn't even apply. So, yeah. That's even more fun. I agree.

 

R. Pepper Crutcher:  Okay. A real in-the-weeds, administrative judicial procedure question here, Paul: Can judges in senior status on the Sixth Circuit vote in an en banc review of this?

 

Paul Larkin:  Well, I haven't checked the CA6's circuit rules or the circuit rules generally. I think that, if a senior judge is on the panel and the case goes en banc, the senior judge might be able to sit on the en banc court because the judge is on the panel. But I am otherwise not sufficiently familiar with the CA6 rules or the practice in this regard to be able to give you a concrete answer.

 

Larry Stine:  It is my understanding that if the initial en banc is granted, it will be the active judges. That's my understanding of the rule.

 

R. Pepper Crutcher:  Okay. So, people in our audience, we have conquered the list of our questions that have been put to us through Chat. If you have any more, please put them up right now. It looks like we're about to use our time up just doing chat questions. So, Guy, unless you think you need to open the floor further, I think we'll just end with our chat questions.

 

      One person wants to know if we happen to know the status of the federal employee mandate litigation. Has the federal employee mandate been enjoined or restricted or narrowed or anything else?

 

Larry Stine:  The federal -- the one that they sent to the federal employees, I'm unaware of any cases. The ones that have been enjoined have been the Center for Medicare and Medicaid Services, the federal contractor ones, and the OSHA ETS. I don't know of any others. Do you, Paul?

 

Paul Larkin:  I'm not familiar with any dealing with that fourth category, the employee mandates. What I have read is that the federal employee unions have objected to this, and the administration, therefore, may be backing off.

 

R. Pepper Crutcher:  We're getting chat comments from multiple viewers who are telling us that the Sixth Circuit just denied en banc hearing of this matter, which means it will be submitted to a panel.

 

Paul Larkin:  That's not a surprise. Like I say, it turns on whether or not they want somebody else to look at this first. It's not surprising that they would say, "I'd like to get the panel to look at it, because if they do a comprehensive job, then we don't need to." The CA6 judges have a lot of other things to do besides this litigation.

 

R. Pepper Crutcher:  Ladies and gentlemen, it looks like we're at the end of our chat questions, and we've been on the air here for 47 minutes. I'll wait another minute or two if you want to throw in one more question.

 

      Oh, thank you. We did get another question, again, from Jeffrey Wood. Are state employees — and let's add local, county, and city employees — subject to the OSHA rule, Larry?

 

Larry Stine:  The answer is going to be a real typical lawyer answer: Yes and no. [Laughs] The [inaudible 00:47:44] of the details are is that states that agreed to enforce OSHA -- one of the tradeoffs that the states gave to do the OSHA is they had to agree that state and local and public employers would be covered by OSHA in those states. So in the states in which the federal OSHA is enforcing it, the states are exempted from OSHA. And the states that enforce OSHA, by their own rules, they are going to be governed by the state's OSHA regulations when they adopt them. As far as I know, South Carolina is still dragging their feet on the first ETS.

 

R. Pepper Crutcher:  Another question for Paul: Paul, one of our viewers says, "Is there any equal protection hay to be made from the fact that we've got a bunch of COVID vaccine mandates for various groups of people and employees, but there is apparently no effort or requirement that people coming in over the southern border be vaccinated. Is that an equal protection problem?"

 

Paul Larkin:  Well, probably, technically, no because they're not employees and so aren't covered by OSHA since what OSHA does is direct employers to make sure that people who show up are either vaccinated or regularly tested.

 

      Atmospherically, however, it does add a great deal to the objection that all that's going on here is politics. I mean, they're requiring all sorts of people except people who enter the country illegally to be vaccinated or tested, and if they're not requiring people who come in illegally to be vaccinated or tested, you've got to ask why. And that's because the President is trying to, you know, kowtow to the Stalinist wing of his party. That's not going to help them in court. It's not something you can use when you're filing a motion; but, as a practical matter, everybody knows that's going on. And what does that mean? That means he's trying to make the courts be the bad guys. And people in black robes, particularly ones at Maryland Avenue, aren't particularly interested in, you know, being punching bags for a politician. So, yeah. It may not be a claim you can use here, but it's going to leave a lasting impression in the minds of the judges whom the administration has to persuade on a host of other matters.

 

R. Pepper Crutcher:  So, for all you viewers who might not have grasped this as obvious, the expression that Paul Larkin just used about --

 

Paul Larkin:  [Laughs]

 

R. Pepper Crutcher:  -- the President's Stalinist allies was his opinion alone and not that of The Federalist Society or the moderator or Larry Stine. However, if you have not seen the movie The Death of Stalin, you should.

 

Paul Larkin:  [Laughs]

 

R. Pepper Crutcher:  Okay. A question from an anonymous attendee: Since a lot of COVID self-tests show the results on the test itself — and for those of you who have not ever done this, it's a little piece of cardboard that you fold over on top of the Q-tip, and then you look at the bar graph outside to see if you tested positive — what will be the record retention requirements for that particular item? Is it good enough that you take, for example, an iPhone photo of that and keep that as a record? Or must you actually keep that cardboard test somewhere as a record of that test? Larry?

 

Larry Stine:  You can scan it and save it electronically. OSHA doesn't have any problems with electronic records in these days and events. Oftentimes, they come in and that's all I give them is electronic records, and they're perfectly happy. So scan it, take a picture, put it in your records, and you're fine.

 

R. Pepper Crutcher:  Okay. Jacob Landers [sp] is trying to ask a question and I'm trying to get to him, but he's not -- I may be running out of room on my --

 

Paul Larkin:  Well, he's -- the question as I see it is that he's losing part of the transmission. Can he look at it -- can he look at it -- can he listen or look at it later? And I think the FedSoc will make this available for later viewing.

 

R. Pepper Crutcher:  Yes. Everything you're seeing here will be up on the FedSoc website. Guy, about how long will that take to get that up?

 

Guy DeSanctis:  Likely a few days. The audio may be up by tomorrow, though.

 

R. Pepper Crutcher:  Well, ladies and gentlemen, we're about to use up our hour. It's been our great pleasure to give you this update, and please watch for this to be posted on The Federalist Society website.

 

      Larry, thank you.

 

Larry Stine:  My pleasure.

 

R. Pepper Crutcher:  Paul, thank you. The Federalist Society and both of the practice groups, thank you for letting us do this.

 

Paul Larkin:  It was my pleasure.

 

R. Pepper Crutcher:  We're adjourned.

 

Guy DeSanctis:  On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for joining and participating. We also welcome listener feedback by email at info@fedsoc.org.

 

      As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.