Update On OSHA’s Vaccine Mandate ETS For Larger Employers

Volume: 20 | Issue: 76
December 16, 2021

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. 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.

The Sixth Circuit Court has not yet ruled on OSHA’s request to lift the stay. But, yesterday, the Court ruled that the case will be decided by a three-judge panel instead of the full court. The Judges of the Sixth Circuit Court were evenly split on this decision to deny en banc (full court) consideration, and two Judges took the opportunity to explain their objections to the ETS in dissenting opinions.

While this ruling narrows the field of decision-makers for the initial determination on the ETS’ legality, it is still possible that the panel’s decision could be reviewed by the full court. Either way, the matter will not likely be finally determined until it is considered by the U.S. Supreme Court.

As you can see, the wheels continue to turn slowly here. We certainly will not see a final ruling on the legality of OSHA’s vaccine mandate this year. We will keep you updated on this litigation and are available to answer your questions about OSHA’s vaccine mandate for larger employers. 

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.

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