On December 3, 2021, the U.S. Court of Appeals for the Sixth Circuit rejected, without analysis, the Biden administration’s request to expedite the briefing schedule on the issue of whether to dissolve an injunction from the U.S. Court of Appeals for the Fifth Circuit, which stayed enforcement of Occupational Safety and Health Administration’s vaccine Emergency Temporary Standard (ETS).  The Fifth Circuit’s November 12 order  is summarized here and the initial stay is summarized here.

Parties must file briefs opposing the Biden administration’s motion by December 7, and the government must respond by December 10.  As a result, the stay will remain in place beyond the ETS December 6 deadline, which requires employers with 100 or more employees to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.  The ETS is summarized here.

Notably, the Sixth Circuit still has not determined whether a panel of three judges or the full Sixth Circuit will hear the challenges to the ETS.  Employers should consult experienced legal counsel for the most up-to-date advice on vaccine policies and the status of the ETS.