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6th Circuit Court of Appeals Lifts the Stay on OSHA’s Vaccine Mandate, But the Legal Challenges Continue

Dec 20, 2021

A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) “Vax or Test” Emergency Temporary. This ruling reinstates the Vax or Test Mandate for employers with at least 100 workers. This ruling is expected to be challenged. In the meantime, several motions requesting a new emergency stay have been filed with the U.S. Supreme Court.

OSHA has stated that it will exercise enforcement discretion with respect to the compliance dates of the ETS. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 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.

It appears OSHA will be moving swiftly to implement what it calls a “vital workplace health standard’, while promising to work closely with the regulated community to provide compliance assistance. A U.S. Supreme Court challenge appears imminent, but no one knows whether the Court will grant a stay of the vaccine mandate, pending an appeal, or how long an appeal will take.

NJCAR recommends that dealers continue to review the requirements of the ETS for possible future compliance, however, decisions like whether to voluntarily mandate a vaccine policy or whether to continue to prepare for compliance with the ETS should be discussed with your Human Resources professionals and individual attorneys.  NJ CAR, as always, will be available to answer general questions about the ETS and provide available information.