STAY ON OSHA EMERGENCY COVID-19 SHOT OR TEST RULE LIFTED

Supreme Court to hear case on expedited appeal on January 7, 2022

The Occupational Safety and Health Administration (“OSHA”) published its Emergency Temporary Standard (“ETS”) requiring employers, with at least 100 workers, to require that their employees either get vaccinated against COVID-19 or get tested regularly. The Standard had been stayed by the Fifth Circuit Court of Appeals.  The U.S. Court of Appeals for the Sixth Circuit in In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, opinion 12/17/21, granted the Biden Administration’s request on December 17th to dissolve the Fifth Circuit’s stay. According to the Court, OSHA clearly has the power to regulate viruses, including those that simultaneously exist in and out of the workplace. Moreover, the harm caused by keeping the Emergency Temporary Standard frozen outweighs any damage that would stem from letting it go into effect. The Sixth Circuit’s ruling was immediately appealed to the U.S. Supreme Court. The Supreme Court said it would hear arguments on an expedited basis on the OSHA ETS case and the Administration’s separate vaccine mandate for healthcare workers. The justices will hear both cases at a special January 7th session.

Without a stay, covered employers should comply with the Standard. Large employers have until January 10th to comply with the rule. They have until February 9, 2022, before facing citations for violating the regulation’s testing requirement.

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Author: Fraser Stryker Labor & Employment Law Attorneys

Patrick J. Barrett

Patrick J. Barrett

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Kathryn A. Dittrick

Kathryn A. Dittrick

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Sarah L. (Sally)  McGill

Sarah L. (Sally) McGill

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Rhianna A. Kittrell

Rhianna A. Kittrell

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