On Friday evening, a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit issued a decision that—for now, at least—will allow the Occupational Safety and Health Administration (OSHA) to move forward with implementing its Emergency Temporary Standard on COVID-19 Vaccination and Testing (“ETS”). The ETS mandates that employers with 100 or more employees require their employees be vaccinated against COVID-19 or undergo weekly testing.
As we previously reported, the Fifth Circuit Court of Appeals initially put a legal “stay”—or hold—on the ETS in early November, calling it “unlawful” and “probably unconstitutional.” However, following a lottery conducted by the Judicial Panel on Multidistrict Litigation, cases challenging the ETS in multiple Federal courts across the country were transferred and consolidated in the Sixth Circuit for disposition. OSHA then filed a motion asking the Sixth Circuit to lift the stay issued by the Fifth Circuit.
In ruling on OSHA’s motion, the Sixth Circuit determined that the Fifth Circuit’s statutory and constitutional analyses “miss the mark.” The Sixth Circuit held that “protection against infectious diseases that present a significant risk in the workplace” is squarely within OSHA’s authority. It also declined to second-guess OSHA’s findings that COVID-19 constitutes an “emergency” which poses a “grave danger,” noting the “wealth of information” in the 153-page preamble to the ETS.
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