In a 2-1 decision issued December 17, 2021, a panel of the U.S. Court of Appeals for the Sixth Circuit has granted the government’s motion to dissolve the November 12, 2021 stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard for COVID vaccines or weekly testing applicable to employers of 100 or more workers.
This means that the OSHA vaccine or testing mandate may go into effect while the cases challenging the mandate are pending, although the court’s decision is likely not the final word on the issue. The petitioners have all filed motions and requests for immediate review at the U.S. Supreme Court.
The majority opinion held that the vaccine/testing mandate was within OSHA’s authority to protect workers from illnesses by reducing health hazards at their places of employment. The court also held that OSHA’s authority is constitutional, justified under Congress’s power to regulate interstate commerce, because Congress found that illnesses arising out of work situations impose a substantial burden upon interstate commerce.
Unless OSHA acts in the meantime to reinstate the January 4, 2022 deadline for compliance with the Emergency Temporary Standard, businesses are advised to wait until the Supreme Court determines whether it will reinstate the stay of the OSHA mandate and how it will handle the various statutory and constitutional arguments under consideration.
OSHA had previously suspended implementation of the vaccine/testing mandate due to the court’s stay.
This GAWDA Safety Alert is issued by GAWDA Consultant Rick Schweitzer, Esq.
Please contact Rick for further information.