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Sixth Circuit Lifts Stay of OSHA Vaccine Mandate for Large Employers

December 20, 2021


On Friday evening, December 17, 2021, the Sixth Circuit Court of Appeals lifted a stay on the Occupational Safety & Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) on Vaccination and Testing.  The ETS requires private employers with 100 or more employees to require employees to be vaccinated against COVID-19 or undergo weekly testing and wear a face covering.

The ETS faced dozens of legal challenges in multiple jurisdictions as soon as it was issued in November. In November, the Fifth Circuit Court of Appeals issued a nationwide stay of the ETS, pausing implementation and enforcement. Under the rules governing multi-circuit litigation, however, the Sixth Circuit was selected by lottery to review consolidated challenges to the ETS. On December 17th, it dissolved the Fifth Circuit’s stay.

As a result of the Sixth Circuit’s decision, the ETS is now back in effect.  OSHA had announced a January 3, 2022 deadline for compliance, but because of the uncertainty created by the stay, OSHA announced that it will be exercising enforcement discretion in the coming weeks. To afford employers time to comply with the ETS, OSHA will not be issuing citations for noncompliance with any provisions of the ETS before January 10, 2022. OSHA will not issue citations for noncompliance with ETS testing requirements before February 9, 2022. Employers must nevertheless exercise reasonable, good faith efforts to comply with the ETS as soon as possible.

As expected, hours after the issuance of the Sixth Circuit’s decision, parties filed emergency petitions with the United States Supreme Court to block the ETS.  Unless the Supreme Court issues a stay, the ETS will remain in effect.  Thus, employers subject to the OSHA ETS should take steps to comply by January 10.

Montgomery McCracken’s Labor and Employment attorneys regularly advise employers on complying with Department of Labor regulations. If you have any questions regarding the OSHA rules, we are available to assist.