On Friday night a 2-1 decision of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati dissolved a ruling by the Fifth Circuit in New Orleans that had put President Biden’s COVID-19 vaccine mandate for larger private employers on hold. The Sixth Circuit’s decision will be applied across the United States.
The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), issued November 4, 2021, requires businesses with 100 or more employees to ensure that their workers are either fully vaccinated against COVID-19 or subject to weekly COVID-19 testing by January 4, 2022. The ETS allows employers to choose the policy implementing those requirements that is best suited to their workplace.
Because numerous petitions for review were filed challenging the rule in multiple federal courts of appeals, the U.S. Department of Justice had asked the courts to consolidate all the challenges for consideration by one court. The U.S. Court of Appeals for the Sixth Circuit was selected in a random draw to hear the many consolidated challenges.
On Saturday, Georgia and Iowa had filed an application with the United States Supreme Court to request an immediate stay of the mandate.
Employers subject to the ETS should be alert for guidance from federal agencies concerning the implementation and enforcement of the vaccine mandate and consult with counsel on appropriate steps to take concerning employer vaccination policies.