US: Update to “US: Federal Vaccine-or-Test Mandate Hits the Lottery System”

This post is an update to our November 16, 2021 article titled “US: Federal Vaccine-or-Test Mandate Hits the Lottery System”.

Having been chosen by lottery to decide on the legality of OSHA’s vaccine-or-test mandate, including whether to uphold the Fifth Circuit’s stay of the mandate, a 2-1 majority of the Sixth Circuit decided on Friday December 17, 2021 to dissolve the stay and allow OSHA to move forward in its enforcement of its emergency temporary standard (ETS).

Contrary to the Fifth Circuit decision to stay OSHA’s enforcement of the ETS, the Sixth Circuit majority held that OSHA was within its authority to issue the rare ETS and declare the current situation an emergency. Holding that OSHA properly justified its finding that “workers face a grave danger in the workplace,” the Sixth Circuit held that it “is not appropriate to second-guess that agency determination” considering the substantial information OSHA provided in the 153-page preamble to the ETS.

The day after the Sixth Circuit’s decision, OSHA issued a brief news release announcing that to “provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” (emphases added).

The new compliance dates are updated from the original December 6, 2021 and January 4, 2022 dates, respectively.

What’s Next?

Immediately after the stay was dissolved, a number of challengers petitioned the United States Supreme Court to reissue the stay and block OSHA once again from enforcing the ETS. Given that two panels of Court of Appeals judges have reached opposite conclusions regarding the stay, it is likely the Supreme Court will choose to review the challenges, and if it does, it is expected this will occur before the January 10 compliance date.

We will continue to provide updates here.

State and Local Laws

Employers are also reminded to ensure compliance with state or local laws that require additional compliance measures beyond those required under the ETS, and to decide upon an approach for those local laws in certain states that limit the employer’s ability to require vaccination or otherwise conflict with the ETS.

Key Contacts