Meet the Decision Makers: The Governor’s Key Advisors - December 13, 2021 REGISTER

The U.S. Occupational Health & Safety Administration is suspending enforcement of its vaccine-or-test mandate affecting more than 84 million private sector workers as the 6th U.S. Circuit Court of Appeals decides how to proceed in the wake of numerous legal challenges to the OSHA rule.

Dozens of lawsuits have been filed nationwide since Nov. 4 when OSHA announced its Emergency Temporary Standard (ETS) mandating that businesses with 100 or more workers require workers to be vaccinated or tested weekly for COVID-19. Most provisions of the ETS, including requiring employers to determine the vaccination status of workers and mandating that the unvaccinated wear masks, were set to take effect Dec. 5. Other provisions were to take effect in January.

“While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” OSHA said in a notice published on its website.

The 5th U.S. Circuit Court of Appeals based in New Orleans temporarily blocked the ETS on Nov. 6, and then eight days later reaffirmed that action in a 22-page ruling that orders OSHA to take no further steps to implement or enforce the vaccine mandate.

The matter is now in the hands of the 6th U.S. Circuit Court of Appeals, based in Cincinnati, which was selected via lottery on Tuesday to hear the multidistrict legal challenges brought against the ETS from all over the country. Under court rules governing multi-circuit litigation, all 34 lawsuits will now be consolidated and reviewed by the 6th Circuit Court, which will decide whether to uphold or overturn the ETS and could even decide whether to lift or affirm previous stay issued by the 5th Circuit Court.

After the 6th Circuit Court issues its decision, the litigation is likely to proceed to the U.S. Supreme Court, which would have the final say about whether the ETS survives. Some law firms are advising businesses to continue efforts to create policies and procedures to comply with the ETS while waiting for clarity from the courts because a ruling upholding the ETS might potentially leave little time to prepare and meet OSHA compliance deadlines.