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December 20, 2021

Biden's vaccine mandate for large employers has been reinstated—for now

Daily Briefing

    A federal appeals court on Friday reinstated the Occupational Safety and Health Administration's (OSHA) mandate for large U.S. employers after it was temporarily blocked last month. However, this is unlikely to be the final ruling on the mandate, which is expected to be appealed to the Supreme Court.


    OSHA earlier this year published an interim final rule that would require workers at all U.S. employers with 100 or more employees to either be vaccinated against Covid-19 or submit to weekly testing. The rule was expected to cover 84 million workers.

    That rule, however, faced immediate legal challenges. In November, the U.S. Court of Appeals for the Fifth Circuit in Louisiana blocked it, saying OSHA had "grossly exceed[ed]" its authority.

    Subsequently, a number of related lawsuits against the rule—including those filed by 27 states in at least six federal appeals courts—were consolidated to streamline the appeals process. The U.S. Court of Appeals for the Sixth Circuit in Cincinnati was randomly chosen from among the six U.S. federal appeals courts to hear the challenges.

    Sixth Circuit Court reinstates OSHA's vaccine mandate

    On Friday, a three-judge panel on the Sixth Circuit Court of Appeals reinstated OSHA's vaccine mandate for large U.S. employers in a 2-1 vote.

    "Fundamentally, [OSHA's rule] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs," wrote Judge Jane Stranch, one of the three judges on the panel.

    She added that OSHA was within its authority to implement the rule since the agency "has regulated workplace health and safety, including diseases, for decades."

    In response to the ruling, the Justice Department said it was pleased that the Sixth Circuit Court is "allowing OSHA to implement common-sense, science-based measures to keep workers safe and healthy during a deadly pandemic."

    However, the Sixth Circuit Court's ruling on the mandate is likely not to be last, the New York Times reports. Soon after the court's ruling, many plaintiffs asked the Supreme Court to temporarily block OSHA's rule once again. According to the Times, the challenges to OSHA's rule will likely be referred to the full Supreme Court for a final decision.

    OSHA delays enforcement of its vaccine mandate

    After the Sixth Circuit Court's ruling, OSHA on Saturday announced that it would delay enforcement of its vaccination and testing requirements "to provide employers with sufficient time to come into compliance." According to AP/Modern Healthcare, the agency will not issue penalties regarding its vaccine requirements until Jan. 10 and its testing requirements until Feb. 9.

    In addition, OSHA said it would not issue any penalties before these new deadlines as long as employers are "exercising reasonable, good faith efforts to come into compliance" to account for potential testing shortages and other difficulties employers may face in complying with the requirements. (Hirsch et al., New York Times, 12/20; Marimow, Washington Post, 12/17; Hsu, NPR, 12/18; Chen, Axios, 12/18; AP/Modern Healthcare, 12/19; Vakil, The Hill, 12/18)

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