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BREAKING NEWS: Sixth Circuit Dissolves Stay of OSHA’s Vaccine-or-Test Mandate. Now What?

By Jonathan T. Hyman, Esq.

By now you’ve likely heard the past weekend’s news that the Sixth Circuit Court of Appeals dissolved the prior stay issued by the Fifth Circuit of OSHA’s vaccinate-or-test emergency temporary standard for employers with 100 or more employees (“ETS”). What does that news mean for your business?

That Sixth Circuit ruling allows the ETS to move forward pending the final ruling on the merits of the ETS. An appeal of that decision has already been filed with the United States Supreme Court. 

Within hours of the Sixth Circuit’s decision, OSHA announced that it would be moving forward with enforcement of the ETS on a slightly delayed scheduled. The agency had previously announced that it was holding enforcement in abeyance because of the Fifth Circuit’s order staying the ETS. 

Per OSHA’s newly announced schedule, the agency has set two compliance deadlines: January 10, 2022, for employers to comply with the ETS other than testing for unvaccinated workers, and February 9, 2022, for employers to comply with weekly testing for the unvaccinated.
While the pending Supreme Court appeal could further complicate matters, until further direction by the Supreme Court employers with 100 or more employees must act as if the ETS is taking effect as stated by OSHA and immediately begin preparing to meet the January 10 and February 9 compliance deadlines. In other words, employers must draft their ETS-compliant policy and begin preparation for the collection of vaccination data from employees in advance of January 9, 2022. Otherwise, employers risk being in non-compliance come January 9.

Your WHP employment law team is ready and able to bring your company into compliance and to meet these new deadlines. For assistance, contact Jon Hyman — or 440.695.8044 — or any member of the WHP Employment & Labor practice group.


This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.

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