May 23, 2022

Volume XII, Number 143

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May 23, 2022

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The Sixth Circuit Vacates The Stay Of OSHA’s Mandate, But OSHA Delays Implementation Until January

As you probably know by now, the Sixth Circuit vacated the stay of OSHA’s vaccine mandate on Friday evening, allowing OSHA to move enforce its regulation, with an substantial, careful opinion by Judge Stranch (who was joined by Judge Gibbons) finding that OSHA has the statutory authority to issue and enforce the emergency temporary standard.  Judge Larsen, the third judge on the motions-turned-merits panel, dissented with another significant opinion.  We’ll follow up on Monday with more analysis of those opinions, and their potential impact on the Supreme Court.  Today, however, OSHA delayed implementation of the emergency temporary standard until January 10.  As a practical matter, lifting the stay only means that OSHA can use December to make preparations for implementing the ETS.

As expected, petitioners raced to filed emergency applications for a stay in the Supreme Court on Friday, with some also using the lesser-known procedure of a cert petition “before judgement.”  That’s often a tough sell, but everyone expects the Supreme Court to weigh in on this case sooner rather than later.  Justice Kavanaugh, as the relevant circuit justice, is currently weighing those emergency motions to stay, though he has the option to send the issue immediately to the full court.  OSHA’s decision to delay enforcement takes some of the urgency away from the issue, so hopefully the Justices can consider these issues carefully.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 353
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About this Author

Colter Paulson Appellate Litigation Attorney Squire Patton Boggs Cincinnati, OH
Of Counsel

Colter Paulson has significant litigation experience, specializing in appellate litigation. He has successfully argued appeals before federal and state appellate courts and has extensive experience leading teams of associates in complex litigation, including multidistrict litigation and class actions.

Colter represents clients in litigation involving consumer financial services, medical devices, healthcare and manufacturing. His international experience includes cross-border litigation on behalf of clients in Asia, South and Central America, and the Middle East. His experience also...

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