What employers should do next after OSHA shot mandate was shot down

Even if you aren’t a regular U.S. Supreme Court watcher, you likely know the Court recently voted 6-3 to strike down the Occupational Health and Safety Administration’s (OSHA) COVID-19 vaccine mandate. The agency’s emergency temporary standard (ETS) would have required private employers with at least 100 employees to create a policy having (1) all of them get vaccinated or (2) all nonremote employees produce a weekly negative virus test to come to work. Failure to comply with the ETS would have exposed companies to serious fines, so many took costly steps to prepare to follow the requirements. The Court’s decision left many of the same employers relieved but also wondering what to do next as infections continue.

ETS described as ‘blunt instrument’

OSHA drafted the ETS in response to an Executive Order (EO) from the Biden administration as a part of the President’s Path Out of the Pandemic Plan announced on September 9, 2021. When the ETS was issued on November 5, it was met with an immediate legal challenge, and the U.S. 5th Circuit Court of Appeals issued a preliminary injunction followed by a permanent stay (halt) blocking the agency’s enforcement of the standard.

The 6th Circuit next took up the case and lifted the nationwide injunction, thereby permitting OSHA to proceed with its enforcement of the measure. The 6th Circuit’s decision was immediately appealed to the Supreme Court.