December 20, 2021

OSHA Vaccine Mandate: 6th Circuit Lifts Stay on Large Employer Vax or Test Mandate | Appeal to US Supreme Court Expected | OSHA Moving Forward with Enforcement

Background:  Multiple Groups including 26 states filed petitions in the Fifth, Sixth, Seventh, Eighth, and D.C. Circuits, requesting a stay of OSHA’s Emergency Temporary Standard (ETS) which featured a requirement that employers with at least 100 employees adopt a COVID-19 vaccination policy that requires employees to be fully vaccinated or submit to at least weekly testing.  The U.S. Courts of Appeals for the Fifth Circuit issued a stay of the ETS citing “cause to believe there are grave statutory and constitutional issues with the Mandate.”  The Sixth Circuit was randomly drawn to review and decide multidistrict litigation.  On Friday, December 17, 2021, a split Sixth Circuit Panel granted OSHA’s motion and dissolved the stay issued by the Fifth Circuit.  In short, the Sixth Circuit found that parties challenging the ETS were unlikely to prevail on the merits of their claims and the harm to the Government and the public interest outweighed the challengers claims of irreparable harm.

What happens next: Representatives of the Petitioners have already indicated that they will proceed to the US Supreme Court.  OSHA has already issued a statement indicating that it intends to move forward with implementation and enforcement of the ETS.  To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  State OSHA programs are anticipated to implement near identical emergency standards within state-plan states in the next 30 days.

Best Practice for Employers? Employers should move in the direction of compliance with the policy and procedure terms of the ETS without delay.

If you are an Employer and have questions and need assistance, please contact the lawyers at Cummins, Goodman, Denley & Vickers at (503) 476-8200.

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