18 December 2021

Sixth Circuit Reinstates OSHA Vaccine-or-Test Mandate

Late yesterday, December 17, 2021, a divided three-judge panel of the Sixth Circuit Court of Appeals lifted the stay on OSHA’s 100+ Employee Vaccination and Testing Emergency Temporary Standard (ETS). The ETS requires workers at companies with 100 or more employees to be vaccinated against Covid-19 or undergo weekly testing. The panel found that the injuries asserted by ETS’s challengers were too speculative and the costs of delaying implementation of the ETS comparatively high.

With the stay lifted, OSHA has extended the compliance deadlines. So long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS, 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 testing requirements before February 9, 2022.

Multiple emergency applications to the Supreme Court were filed overnight seeking an immediate stay of the ETS. Therefore, another stay could be issued, and uncertainty remains regarding the ultimate fate of the ETS. But barring action by the Supreme Court, employees will need to receive their final dose of the vaccine by February 9 to avoid the ETS’s masking and weekly testing requirements.

Also on Friday, the Eleventh Circuit Court of Appeals upheld the nation-wide stay of the federal contractor vaccine mandate.  Federal contractors should keep in mind that if they have 100 or more employees, the OSHA vaccinate or test rule still applies even while the federal contractor vaccine mandate is on hold.

Join us Monday, December 20 at noon EST for a webinar covering these latest updates and to answer any questions you may have about the implications of the ongoing litigation.

We will be sure to keep you updated of any relevant developments. If you have any questions, please contact your Miller Johnson attorney.