Friday, December 17, 2021

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

What does this mean?

1/ It’s a strong signal that the ETS will survive the 6th Circuit, setting up a final showdown in the Supreme Court. 

2/ OSHA will likely get the ETS back on track for rollout and enforcement, albeit on a delayed timetable. Stay tuned for news on what that looks like. 

3/ But, and it’s a BIG BUT, the petitioners can (and almost certainly will) ask SCOTUS to reinstate the stay ASAP, and certainly before the 6th Circuit rules on the merits of the ETS itself.

What should covered employers do now? Wait for further guidance from OSHA on how it plans to move forward. But it’s best to start preparing, and preparing quickly, for the ETS to take effect … unless the Supremes tell you otherwise. In other words, stay tuned.

9:47 pm UPDATE: An appeal to the Supreme Court has already been filed. That didn’t take long.