On December 17, 2021, the Sixth Circuit granted the Biden Administration’s motion to Dissolve the Stay of the OSHA Vaccine ETS, which was issued by the Fifth Circuit on November 5, 2021. See link to full opinion. Judge Stranch (an Obama appointee) authored the opinion, which Judge Gibbons (a Bush appointee) joined. Judge Larsen (a Trump appointee) dissented. Unlike other appellate panels that have considered vaccine mandates, the Sixth Circuit specifically held that the Vaccine ETS was: (1) within OSHA’s authority; (2) not covered by the major questions doctrine (as the Fifth Circuit and the challengers contended); and (3) promulgated with more than sufficient justification based on the ongoing COVID-19 pandemic. In addition, the Sixth Circuit rejected petitioners’ commerce clause and non-delegation arguments. Notably, in lifting the stay, the Sixth Circuit concluded that Petitioners could not demonstrate the requisite likelihood of success on the merits or show irreparable injury, both of which are required for an injunction. This ruling could serve as a blueprint for local appellate courts to uphold vaccine mandates imposed on a state level. On November 12, 2021, OSHA announced that it would not attempt to enforce the ETS while the stay was in place. Now that the stay has been lifted, it remains to be seen how OSHA will address enforcement and compliance as the merits of the case proceed. In the meantime, Petitioners are expected to seek review en banc or to appeal directly to the United States Supreme Court. In the meantime, the state of Ohio trucking industry organizations, conservative advocacy groups, and other opponents of the rule petitioned the U.S. Supreme Court to block the OSHA.
OSHA has announced that it 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. Businesses and individuals with questions should contact experienced counsel for guidance on new policies and practices.