The Sixth Circuit Gives New Life to the Vaccine Mandate – Next Up, the Supreme Court

As HR Legalist previously reported, earlier this year, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), mandating that employers with at least 100 employees require all employees to receive the COVID-19 vaccination or submit to weekly testing and wear face coverings. However, several states filed emergency lawsuits in various courts, seeking to invalidate the ETS. The United States Court of Appeals for the Fifth Circuit quickly issued an injunction staying enforcement of the ETS.  The petitions in the various courts were then consolidated into one case that was assigned to the United States Court of Appeals for the Sixth Circuit.  On Friday, the Sixth Circuit dissolved the stay, finding that, “[b]ased on the substantial evidence referenced and relied upon by OSHA, there is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.” With the stay stricken, the ETS is back in effect . . . for now. 

Shortly after the decision was handed down, multiple petitioners filed emergency applications for an immediate stay with the Supreme Court of the United States. Those applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals.  It is difficult to predict how Kavanaugh will rule. Kavanaugh is a Republican-appointed judge; however, more than two-thirds of the Sixth Circuit judges were also Republican-appointed. Moreover, while Republicans loathe government intrusion, the Sixth Circuit repeatedly noted that OSHA was giving employers the ability “to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.”  Recently, Justice Roberts denied an emergency petition seeking to block the federal mask mandate at U.S. airports and Justice Coney Barrett rejected an emergency request seeking to block enforcement of a public university’s vaccine mandate. While it is unknown whether Kavanaugh will follow suit, these decisions may signal the Court’s willingness to uphold such mandates or at least stay above the fray.

Following the Sixth Circuit ruling, OSHA issued a statement noting that it was “gratified” by the decision upholding the ETS.  The original ETS required employers to enact a policy and collect proof of vaccination status by December 6th and to ensure all unvaccinated employees are undergoing testing by January 4th. “To provide employers with sufficient time to come into compliance,” OSHA extended the deadlines for the ETS.  Accordingly, employers now have until January 10, 2022, to enact policies and collect proof of vaccinations and until February 9, 2022, to ensure unvaccinated employees are complying with the testing requirement.  OSHA further noted that it will not issue citations for noncompliance, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Based on the Sixth Circuit decision and the statement from OSHA, employers should continue or resume their efforts to come into compliance with the ETS.  Obermayer will continue to update you as developments become available, particularly when the Supreme Court issues a decision on whether to grant an emergency stay.  As always, Obermayer’s Labor and Employment attorneys are prepared to answer any questions you may have and to help you comply with these requirements. 


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Stacey L. Pitcher

Partner

Stacey defends management in a variety of high-exposure employment law and professional liability matters. She advises employers regarding recent changes to the law, writes and revises policies and procedures, conducts a variety...

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Alexandra L. Simels

Associate

Ally is an attorney in the Labor and Employment department. She counsels and represents employers on a wide array of employment issues including discrimination, harassment, and wrongful discharge. Ally litigates on behalf...

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Melissa M. Blanco

Associate

Melissa is an attorney in the Litigation Department, focusing her practice on restrictive covenant and trade secret cases, commercial litigation, and appellate matters. In her position, Melissa has worked to secure preliminary...

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