Sixth Circuit Lifts OSHA Vaccination Mandate Suspension

In the last chapter of the dizzying fight against private employers’ vaccine mandates, on December 17, 2021, the Sixth Circuit Court of Appeal lifted the suspension of a sister appeals court to the Occupational requirement. Safety and Health Administration (OSHA) that employers with 100 or more US employees should be vaccinated or have their faces tested weekly and covered as part of an overall COVID-19 mitigation strategy. As previously reported, President Biden announced in September 2021 that he would ask OSHA to pass rules requiring vaccination or testing, which rule (OSHA’s Temporary Emergency Standard, or ETS) was published early November, to mixed reviews. So mixed, in fact, that nearly three dozen lawsuits have been filed to permanently suspend or strike down the ETS. The first to result in a decision was heard by the Fifth Circuit Court of Appeals, a panel of which concluded in a 2-1 decision that the implementation of the ETS should be suspended because the measure was not not necessary and was beyond the scope of OSHA authority. From there, the various lawsuits filed across the country aimed at invalidating the ETS were consolidated for review by a single court, the Sixth Circuit Court of Appeal. A historically conservative court, many have assumed that the Sixth Circuit Court of Appeals would follow the Fifth Circuit and find the ETS unconstitutional, or at least issued recklessly. Even OSHA seemed skeptical that the ETS would survive the Sixth Circuit review, as the agency released a declaration on its website by maintaining its own rule pending judicial review.

However, in a surprise decision, the Sixth Circuit lifted the suspension and reinstated the ETS, which will affect approximately 80 million American workers. The court noted that OSHA has “satisfactorily demonstrated the pervasive danger COVID-19 poses to workers, especially unvaccinated workers, in their workplaces.” The court agreed with the Department of Justice (DOJ), which supported the Biden administration’s measure, that with the increase in the number of new cases of COVID-19 and the emergence of new variants such as the variant highly contagious Omicron, the threat to workers is sufficient. give OSHA the power to implement measures to slow the spread to protect the safety and health of American workers. The court rejected the petitioners’ claims that mandatory vaccination or testing requirements impose substantial costs on businesses and risk further staff shortages, finding that OSHA conducted sound economic analyzes before issuing the ETS showing the feasibility of implementing the standard, and that concerns to the contrary are “entirely speculative”. Circuit Judge Jane B. Stranch, an Obama-appointed person who wrote for the panel, concluded that ETS “is an important step in reducing the transmission of a deadly virus that has killed more than 800,000 people in the United States brought our health care system to its knees. , forced businesses to shut down for months and cost hundreds of thousands of workers their jobs, ”the panel concluded outweighed any irreparable harm to petitioners subject to a vaccination policy or test.

As a result of the legal skirmish, the initial HTA compliance timelines have passed, but now, unless the Supreme Court rules on the matter and decides quickly, vaccine or testing requirements are expected to come into effect on January 4. 2022. With the holidays falling by the deadline, employers are urged to use their last days before the holidays to make plans if they have not already done so to check vaccination status, implement safe record keeping practices and prepare for testing procedures and snafus planning. likely to infect (no pun intended) larger workforces immediately upon returning to the office in the New Year. Like a reminder, we’ve developed OSHA-compliant ETS policies for employers facing a short compliance deadline, at least until the next chapter in this story is written.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 352

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