A pharmacist preps a COVID-19 vaccine. Photo by Steven Cornfield on Unsplash.

The Biden administration’s rule requiring businesses with 100 or more employees to either vaccinate or regularly test their employees for COVID has been reinstated.

The 6th Circuit Court of Appeals lifted a stay on the vaccine rule on Dec. 17. The rule was temporarily blocked on Nov. 7 by the 5th U.S. Circuit Court of Appeals. Lawsuits against the rule have claimed it to be overreach by President Joe Biden, specifically against the emergency temporary standard (ETS) created by the Occupational Safety and Health Administration (OHSA) to enforce it.

The ETS is based on the COVID-19 pandemic causing “grave danger” to workers, hence the need to have larger employers protect their workers against the virus by requiring vaccinations or to be tested on a regular basis and wear masks. Critics have said the president cannot impose medical procedures on the American public without proper checks and balances.

However, a three-member panel of judges dissolved the stay, concluding that the ETS is an “important step” in curtailing the transmission of a virus that has killed over 800,000 people in the United States. Jane Stranch, circuit judge, writes that the injuries the petitioners claim in their lawsuits, such as compliance costs being too high, are “entirely speculative.”

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” wrote Stranch.

OSHA announced it will exercise enforcement discretion with respect to the compliance dates of the ETS. The agency will not issue citations for noncompliance with any ETS requirements before Jan. 10 and won’t issue citations for testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Multiple Round Rock TX Roofing business groups and religious organizations have asked the Supreme Court for a new emergency stay against the ETS.

“To date, the Supreme Court has been hesitant to get involved in state and local vaccine mandates, allowing those mandates to remain in place,” writes Philip Siegel, a partner at Henrick, Phillips, Salzman & Siegel, in a column for RC. “It remains to be seen whether the justices will agree to review the decision by the Sixth Circuit, and if so, whether the decision will be affirmed or reversed.”

One of the arguments against the ETS came from the Construction Industry Safety Coalition, a group of 26 industry associations that includes the National Roofing Contractors Association. In its objections, the coalition said the low exposure risk of the construction industry meant the ETS’ “grave danger” condition shouldn't apply. The 5th Court agreed, calling the ETS both “overinclusive” and “underinclusive.”

Regarding the 5th Court's conclusions, Stranch states "neither observation warrants a stay,” saying OSHA may lean on the side of overprotection with an ETS, and agreed with OSHA’s findings that employees can be exposed to the virus in almost any work setting.

“The argument that the ETS is overinclusive because it imposes requirements on some workers that are at lesser risk of death than others overlooks OSHA’s reasoning,” Stranch wrote.

The ETS does exclude certain workers, such as outdoor workers, from having to comply with safety protocols. Visit our breakdown on the ETS for more details.

The circuit court's opinion points out that the ETS “does not require anyone to be vaccinated,” and instead employers are left to determine how best to minimize the risk of contracting COVID-19 in the workplace, whether it’s through requiring vaccines, through testing and masks or having employees work from home. Employers must also confirm the vaccination status of employees and keep records of that status.

OSHA estimates the rule could save more than 6,500 lives and prevent over 250,000 hospitalizations in the six months that it would be in effect.

Chris Gray is the managing editor of Roofing Contractor.