On Dec. 17, 2021, the United States Court of Appeals for the Sixth Circuit ended the injunction preventing enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).  The ETS requires that large employers must implement a COVID-19 vaccine mandate or testing protocol.[1]

A divided three-judge panel of the Sixth Circuit found the harm in maintaining the Fifth Circuit’s stay outweighed the alleged damages that would occur in allowing the ETS to go into effect. The court found, “the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”[2]

Ultimately, a majority of the court's three-judge panel (comprised of one Barack Obama appointee and one George W. Bush appointee) found that statutory and constitutional challenges to OSHA’s ETS had little possibility of success and did not warrant a continued stay of enforcement.

After this development, OSHA posted the following notice to its website: “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.” This update provides large employers with additional time to plan for implementation of ETS requirements. However, the Sixth Circuit’s order may not be the last word on enforcement. Immediately after the Sixth Circuit issued its order, challengers sought an appeal to the U.S. Supreme Court.

We will provide any additional litigation updates as they arise. Please contact your Dinsmore attorney for further guidance.