The Latest On OSHA’s Vaccine Mandate For Larger Employers

As you know, the Vaccination and Testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) requiring larger employers to adopt vaccination programs was stayed by the Fifth Circuit Court of Appeals in early November. Additionally, the multiple lawsuits filed against OSHA challenging the ETS have been consolidated into one case that will be heard by the Sixth Circuit Court of Appeals.

We are currently waiting for the Sixth Circuit Court to rule on two issues: (1) whether the case will be heard by the entire Court or by a three-judge panel; and (2) whether the Court will lift the stay of the ETS.

As to the stay, the Sixth Circuit Court is in no hurry. In response to OSHA’s Emergency Motion to Dissolve Stay (filed on November 23), the Court has given the parties until December 10 to finish briefing the issue. As such, the Court will not rule on the stay until after December 10, and the stay will remain in effect through the ETS’s first deadline (December 5).

We anticipate that the stay will remain in effect while the Sixth Circuit Court considers the ETS’s legality. In other words, we expect that the Court will deny OSHA’s Motion to Dissolve Stay and keep the stay in place at least until it rules on whether the ETS is lawful. Even if the Court lifts the stay, it seems safe to conclude that OSHA will need to provide employers with new deadlines.

Indeed, OSHA suspended activities related to the implementation and enforcement of the ETS during the litigation and has now extended the comment period on the ETS by 45 days. (The comment period relates to OSHA’s efforts to transform the ETS into a permanent OSHA standard.)

We will continue to keep you updated on this matter. KZA attorneys are available to answer your questions during this confusing and uncertain time.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.