Wither OSHA’s vax-or-test mandate? Lots of litigation ahead

Litigation opposing the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test mandates for employers with at least 100 employees will continue for the immediate future. What do recent developments mean for Virginia employers and others?

How we got here

OSHA issued the COVID-19 emergency temporary standard (ETS) on November 4, 2021. In brief, it requires larger employers to ensure:

• As of December 5, all unvaccinated employees wear masks; and
• By January 4, 2022, all employees are either fully vaccinated for the virus or submit to weekly testing.

Less than 10 days later, however, the New Orleans-based U.S. 5th Circuit Court of Appeals issued a preliminary injunction barring OSHA from implementing the mandate. As a result, the federal agency has suspended all activities related to implementing and enforcing the rule pending further litigation.

Next stops: 6th Circuit, possibly Supreme Court

One thing is certain: The fight over the legality of OSHA’s mandate will continue, and the next round of litigation will take place in the 6th Circuit, based in Cincinnati, where numerous challenges from across the country to the agency’s rule and authority have been consolidated.