In the on-again, off-again style we have come to expect with the OSHA ETS as the Vaccine Mandate challengers and its staunch defenders make their way through the legal system, the Sixth Circuit Court of Appeals has lifted a November injunction that had blocked the Occupational Safety and Health Administration (OSHA) from implementing the vaccine mandate for large businesses impacting over 80 million American workers giving the OSHA ETS a green light for now.


What’s the Latest?

In the latest chapter in the dizzying fight over private employer vaccine mandates, on December 17, 2021, the Sixth Circuit Court of Appeals lifted a sister appellate court’s stay of the Occupational Safety and Health Administration’s (OSHA) requirement that employers with 100 or more U.S. employees require vaccination or weekly testing and face coverings as part of a comprehensive COVID-19 mitigation strategy. The Court noted that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The Court agreed with the Department of Justice (DOJ), which argued in support of the Biden administration measure, that with new COVID-19 case numbers rising and the emergence of new variants like the highly contagious Omicron variant, the threat to workers is sufficient to give OSHA authority to implement steps to slow the spread in order to protect the safety and health of U.S. workers.


What’s Next?

Legal questions about the OSHA rule are far from resolved. Immediately after the U.S. Court of Appeals for the Sixth Circuit ruled on Friday, 25 states challenging the mandate petitioned the Supreme Court to intervene as part of its “emergency” docket. Appeals from the Sixth Circuit are assigned for review by Justice Brett Kavanaugh, who under Supreme Court rules could, in theory, make a decision on his own but is more likely to refer the matter to the full Supreme Court. With the Labor Department now delaying full enforcement of its rule until Feb. 9, the justices have several weeks to ask for abbreviated briefings if they want them.

Adding a layer of confusion, many states and cities have created their own vaccine rules — some more stringent than the federal government’s, as in New York City, where an option to test out of vaccine requirements isn’t allowed, while some, like Florida, have sought to undermine OSHA’s rule. There’s also the question of whether companies will eventually be required to mandate boosters, which would require accommodating the six-month delay between the second and third shots.


Associated Timeline Adjustments

On Saturday, hours after the appeals court ruling, the Labor Department’s Occupational Safety and Health Administration urged employers to start working to get in compliance. But OSHA also gave employers some leeway, pushing back full enforcement of the rule until February, recognizing that for all its best intentions the rollout of the rule has been muddled. For companies struggling to meet OSHA’s standards because of testing shortages, the Labor Department said Sunday that it would “consider refraining from enforcement” if the employer has shown a good-faith effort to comply.

Bottom line, folks. Stay tuned. The Supreme Court has given Biden until December 30, 2021 to respond to the appeals, but it seems likely that this one will be referred for the full court review.