Federal COVID-19 vaccine mandate saga continues

Of all the vaccination mandates issued by the federal government, the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) has likely received the most attention lately. Its enforceability, or lack thereof, has been a constantly moving target. On December 17, a three-judge panel of the U.S. 6th Circuit Court of Appeals in Cincinnati dissolved the New Orleans-based 5th Circuit’s nationwide stay against enforcing the ETS, setting the stage for possible en banc review or a writ of certiorari to the U.S. Supreme Court. An analysis of both decisions may provide some insight about how arguments for and against the standard will be made at the highest level.

How ETS came about

OSHA’s ETS, which was issued on November 5, 2021, applies to private employers with 100 or more employees. Generally speaking, the standard requires covered employers to (1) develop, implement, and enforce mandatory COVID-19 vaccination policies for all covered employees or (2) permit, as an alternative, policies requiring employees to get vaccinated or consent to weekly coronavirus testing. The rule likewise requires employers to: