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OSHA's "Vaccination or Testing" Rule Reinstated by Sixth Circuit Court of Appeals

Post date
December 20, 2021
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Jeff Henriksen, SMACNA

In a decision released late Friday night, a three-judge panel from the Sixth Circuit Court of Appeals issued a decision "dissolving" the stay order preventing OSHA from enforcing its "vaccination or testing" rule for employers with 100 or more employees.  One judge dissented.  As background, on November 5, OSHA published its Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) ("OSHA ETS Rule").  The OSHA ETS Rule, remember, requires employers with 100 or more employees to implement COVID-19 vaccination policies that, by January 4, 2022, require employees to either: (a) be vaccinated against COVID-19 or (b) submit to weekly COVID-19 testing.  On November 12, the Fifth Circuit Court of Appeals issued an order preventing OSHA from enforcing the OSHA ETS Rule.  OSHA responded by announcing that the agency "has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."  The case was then reassigned to the Sixth Circuit Court of Appeals.

In rejecting the Fifth Circuit's decision staying the OSHA ETS Rule, the Sixth Circuit Court of Appeals noted that OSHA has historical precedent for using wide discretion to ensure worker safety and "demonstrated the pervasive danger that COVID-19 poses to workers-unvaccinated workers in particular-in their workplaces." The three judge panel added that "the harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy."

What Next?

This ruling will not be the final word on the OSHA ETS Rule, as the case will likely be headed to the Supreme Court.  In the interim, though, the Sixth Circuit Court of Appeals decision appears to give OSHA the green light to "restart" enforcement of the OSHA ETS Rule (including the January 4th deadline).  Whether OSHA will do so, however, remains to be seen.