From Littler Mendelson P.C.

On Friday evening [December 17,2021], the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s “vaccine or test” requirement for private employers. Following the Court’s order, OSHA quickly announced that employers will now have until:

  • January 10 to develop compliant policies
  • February 9 to begin testing programs

More detail and analysis of the OSHA ETS litigation can be found in our recently published ASAP.

However, within hours of the Sixth Circuit’s decision, a broad coalition of 26 trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay pending Supreme Court review. The U.S. Supreme Court has asked for responses by December 30, 2021.

In the interim, and if you have 100 or more employees, we recommend that you put plans in place to come into compliance with any OSHA ETS requirements that apply to your business by the newly established deadlines. OSHA intends to begin enforcement efforts unless and until the ETS is enjoined again or ultimately declared unlawful – decisions that we will not get until sometime in 2022.