Sixth Circuit to hear challenges to OSHA
COVID-19 vaccine mandate

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a permanent nationwide injunction on the Department of Labor’s Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS mandates COVID-19 vaccinations or at least weekly testing for workers at U.S. companies with 100 or more employees by January 4, 2022.¹

As background, on November 5, a day after the OSHA ETS was issued, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit granted a temporary injunction of the OSHA ETS. The Department of Justice appealed the decision, arguing that the OSHA ETS was necessary to protect workers from the COVID-19 pandemic and was well grounded in law.

Additional lawsuits challenging the OSHA ETS were filed in multiple circuit courts of appeal, and on November 16, the Sixth Circuit was selected via lottery to hear the case. Until the Sixth Circuit rules on the issue, the permanent injunction will remain in place. Regardless of the outcome of that ruling, it appears this issue will be appealed to the U.S. Supreme Court for a final ruling.

Pending further developments in the litigation, OSHA has suspended enforcement of the ETS. Employers should consult with legal counsel on whether to move forward in taking steps to comply with the ETS.

Note that an employer may impose a COVID-19 vaccination mandate on its own, subject to any applicable state laws, regardless of the eventual results of the OSHA ETS litigation.

Footnote

¹ See “OSHA issues COVID-19 vaccine mandate guidance,” Insider, November 2021.