In a surprise ruling, the U.S. Court of Appeals for the Sixth Circuit issued an opinion lifting the stay imposed by the Fifth Circuit Court of Appeals relating to the OSHA employer vaccine mandate. Contrary to the Fifth Circuit’s opinion issued in November, the Sixth Circuit states that OSHA does have authority under the OSH Act and the U.S. Constitution to impose a federal vaccine mandate on employers with at least 100 employees. In a lengthy opinion, the Sixth Circuit explains that the OSHA rules do not require anyone to be vaccinated, but allows employers to opt out of vaccination policies and allow for weekly testing and mask wearing. The court concluded that enforcing the mandate will prevent significant injury to the public by curtailing the transmission of a deadly virus. You can read the entire opinion here.
In a press release also last night, the U.S. Department of Labor stated that it will not “issue citations for noncompliance with any requirements of the ES before January 10th and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” What this means for employers at the moment is that they should start creating vaccine policies. OSHA has provided examples here. This also means that for the moment, state laws such as those in Florida, Texas and others where employer vaccine policies have been restricted are now overruled.
However, employers should note that the 6th Circuit’s decision will be appealed to the Supreme Court of the United States, which could agree with the Sixth Circuit’s analysis, the Fifth Circuit’s analysis, or arrive at a different conclusion. We won’t know the ultimate fate of the OSHA vaccine mandate rules until the Supreme Court decides, which could take a few months.
If you need assistance with your COVID19 Vaccination plan, contact our firm for help.