New York, N.Y. (December 20, 2021) - In the early evening hours of December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals lifted the stay of the Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). As a result, employers with more than 99 employees must have all employees vaccinated or masked and tested weekly.

New Compliance Dates

Recognizing that the chaotic situation is problematic for employers, especially given the holiday season, OSHA has announced new compliance dates to provides employers with the needed time to formulate their plans. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to test in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022. OSHA will not issue citations for noncompliance with the standard's weekly testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The Sixth Circuit decision concluded that OSHA has ample authority to regulate viruses and infectious diseases, concluding that OSHA's authority is not limited to "hard hats and safety goggles."

Immediate Challenges

This ruling from the Sixth Circuit is already on appeal. Within an hour of the decision, a group of 26 trade groups filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review. As of this writing, at least seven emergency applications for stay of action are pending with the U.S. Supreme Court. The applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals.

Justice Kavanaugh has several options. He may grant the applications and stay the ETS pending review by the entire Court. He could refer the applications to the full Court for a decision. The new OSHA deadlines provide Justice Kavanaugh with some lead time to send the emergency applications to the full Court. He could also take no action on the applications pending review by the full Court. The Supreme Court has historically avoided taking up vaccine mandate cases, but the ETS is unique in its scope and nationwide impact.


In the early 1940s, a city planning architect in Lake Jackson, Texas came up with the street names of "This Way," "That Way," "Any Way," "Circle Way," "Parking Way," and "Winding Way." More than a little confusing. Like the true-story street names in Lake Jackson, the COVID-19 mandate situation is also confusing. Adding to the confusion, several states (including Kansas) have passed legislation making exemptions from the mandate very easy. For example, Kansas has passed a law preventing employers from challenging any religious exemption from the vaccine mandates.

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