OSHA stays implementation of vaccine mandate, pending Sixth Circuit review of the legal challenges

As we have previously reported, the recently announced Occupational Safety and Health Administration (OSHA) vaccination Emergency Temporary Standard (ETS), affecting employers with 100 or more employees, has been challenged in multiple lawsuits filed around the country. By randomized choice and in accordance with the procedures that govern multi-district litigation, the U.S. Sixth Circuit Court of Appeals was selected to review these cases. The court has federal jurisdiction over Ohio, Kentucky, Michigan and Tennessee. 

Simultaneously, OSHA just announced that it will voluntarily suspend implementation and enforcement of the ETS while the court considers whether OSHA’s policy requiring employees to be vaccinated or tested constitutes a valid exercise of OSHA’s regulatory powers. Practically, the result of OSHA’s stay is that the December 5, 2021, and January 4, 2022, compliance deadlines associated with implementing a vaccine mandate or weekly testing program are likely to be postponed. Employers are free to implement vaccine policies despite OSHA’s suspension, but depending on the scope of their operations, they should check the laws of any states that may prevent such policies.

The vaccine-or-test rule is expected to affect more than 80 million workers.