Breaking News: Court Lifts Stay on OSHA ETS Vaccine Mandate

Client Alert

Late on Friday, December 17, 2021, the Court of Appeals for the Sixth Circuit ended the Fifth Circuit’s stay of OSHA’s COVID-19 vaccination and testing Emergency Temporary Standard (ETS), which applies to employers with 100+ employees.

In granting the government’s emergency motion to dissolve the stay, the Sixth Circuit focused, primarily, on whether the parties challenging the ETS are likely to succeed on the merits of their claims—finding that they are not. The Sixth Circuit opines that OSHA “necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” and relied heavily on the ETS preamble discussing the dangers posed by the continued spread and mutation of COVID-19. The Sixth Circuit also addressed arguments that the ETS is unconstitutional under the Commerce Clause and/or nondelegation doctrine.

Today, OSHA announced its intent to move forward with enforcing the ETS, allowing for a limited grace period to give employers time to comply. Specifically, OSHA announced that—so long as employers are exercising reasonable efforts to comply with the ETS—it will not issue citations for noncompliance before February 9 for the testing requirements and January 10 for all other requirements (including the requirements for employers to implement vaccine policies and confirm vaccination status of all employees).

Within hours of the Sixth Circuit’s opinion, a group of employers filed an emergency application to the U.S. Supreme Court, requesting an immediate stay of the ETS and review by the Supreme Court. At this point, it is unclear whether the Supreme Court will either issue the requested stay or take up review of the ETS. Therefore, the fate of the ETS still remains unclear, leaving employers to cope with the legal whiplash.

Employers should promptly review the ETS and consult counsel regarding its requirements so that they can comply with the ETS by the applicable deadlines. Manatt will continue to provide updates on the latest developments on this issue.

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