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OSHA COVID-19 Vaccine Mandate is Back Following Sixth Circuit Decision

On Dec. 17, 2021, the United States Court of Appeals for the Sixth Circuit ended the injunction preventing enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).  The ETS requires that large employers must implement a COVID-19 vaccine mandate or testing protocol.[1]

A divided three-judge panel of the Sixth Circuit found the harm in maintaining the Fifth Circuit’s stay outweighed the alleged damages that would occur in allowing the ETS to go into effect. The court found, “the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”[2]

Ultimately, a majority of the court's three-judge panel (comprised of one Barack Obama appointee and one George W. Bush appointee) found that statutory and constitutional challenges to OSHA’s ETS had little possibility of success and did not warrant a continued stay of enforcement.

After this development, OSHA posted the following notice to its website: “OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard.” This update provides large employers with additional time to plan for the implementation of ETS requirements. However, the Sixth Circuit’s order may not be the last word on enforcement. Immediately after the Sixth Circuit issued its order, challengers sought an appeal to the U.S. Supreme Court.

FOOTNOTES

[1] For more information about the requirements of the OSHA ETS, see our previous alerts here: [https://www.dinsmore.com/publications/osha-publishes-covid-19-vaccine-mandate-for-companies-with-100-or-more-employees/

https://www.dinsmore.com/publications/osha-suspends-implementation-and-enforcement-of-covid-19-vaccine-and-testing-mandate/].

[2] The court’s full opinion is available here: https://aboutblaw.com/0WM.

© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XI, Number 354
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About this Author

H. Devon Collins Associate Labor Employment Law
Associate

Devon focuses his practice on labor and employment law. He represents employers responding to administrative investigations by the EEOC, OCRC, and OSHA. His experience includes defending national employers in dozens of litigation matters in state and federal courts, including taking and defending depositions, preparing pleadings and motions, and representing employers in trials dealing with claims of breach of contract, defamation, discrimination, and other issues.

614-628-6974
Lira Johnson, Employer Compliance Attorney, ERISA lawyer, Dinsmore Law firm
Partner

Lira Johnson is a Partner in the Labor and Employment Law Department. Lira advises employers on compliance with state and federal laws and regulations governing employees. She represents employee benefit plans and fiduciaries in litigation concerning employer-sponsored health plans and governed by the Employee Retirement Income Security Act of 1974 as amended (ERISA). She also defends employers in administrative proceedings before the Equal Employment Opportunity Commission, the Kentucky Commission on Human Rights, the Michigan Department of Civil Rights, MI-OSHA and KY-...

502-540-2328
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