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Volume XII, Number 138

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Sixth Circuit Lifts Stay on OSHA’s Vaccine-or-Test Rule

On Friday, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s vaccine-or-test rule for employers with 100 or more employees. In response, OSHA posted a brief statement on its website stating that large employers should have compliant policies in place by January 10th and be prepared to meet the rule’s testing requirements by February 9th.  

The divided three-judge panel of the Sixth Circuit granted the emergency motion filed by the Department of Justice to dissolve the stay, which had originally been issued by the Fifth Circuit. Judge Stranch, an Obama appointee, and Judge Gibbons, a George W. Bush appointee, formed the majority.  Judge Nelsen, a Trump appointee, dissented from the ruling.  

Writing for the majority, Judge Stranch concluded that OSHA had the authority to immediately implement the rule under the OSHA statute’s requirements for an emergency rule because the COVID-19 virus is a “physically harmful” agent that poses a “grave danger” to employees. Judge Gibbons issued a concurring opinion, noting that OSHA was entitled to deference in exercising the policy-making responsibilities granted to it by Congress and had likely  acted within the bounds of its statutory authority and the Constitution. In dissent, Judge Nelsen adopted the reasoning set forth by the Fifth Circuit that OSHA lacked the authority to issue the rule.

Those challenging the rule have already filed an appeal to the U.S. Supreme Court, which could enter its own order staying the rule.  Roetzel will keep you updated on further developments in the case.  As of now, however, employers with 100 or more employees should be prepared to meet the revised January 10th and February 9th deadlines announced by OSHA. Our November 5, 2021 client alert sets forth the requirements of the rule.  

©2022 Roetzel & AndressNational Law Review, Volume XI, Number 354
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About this Author

Morris Hawk Of Counsel Attorney Cleveland Employment Labor Roetzel & Andress
Of Counsel

Morris focuses his practice on helping employers successfully navigate all legal aspects of the employment relationship.  He advises employers on complying with federal and state employment laws and employee benefits law.  He represents employers in traditional labor relations law before the National Labor Relations Board; in collective bargaining (including arbitration); and in union avoidance.  Morris also represents employers in workers' compensation matters throughout Ohio.

In addition to his employment practice, Morris represents owners,...

216-615-4841
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