Appellate Court Allows OSHA Vaccine-or-Test Rule to Advance

NACS files an appeal with the U.S. Supreme Court; OSHA pushes back its compliance deadlines.

December 20, 2021

Covid Vaccination Card

ALEXANDRIA, Va.—The U.S. Circuit Court of Appeals for the 6th Circuit on Friday lifted the stay that was preventing the Occupational Safety and Health Administration’s (OSHA) emergency rule from moving forward. The OSHA rule requires private-sector businesses with 100 or more employees to require their employees to get vaccinated against COVID-19 or to undergo weekly testing for the virus.

In November, NACS filed suit to block the rule from going forward and is now joined by about two dozen business associations in that litigation. The NACS suit, along with one filed by multiple states, was originally filed in the 5th Circuit Court of Appeals, which entered a nationwide stay of the rule while the cases were being litigated. Those lawsuits, along with ones filed in every other U.S. circuit court of appeals, were consolidated into the 6th Circuit.

The 6th Circuit panel decided that the OSHA rule could move forward while litigation on the ultimate question of its legality was being pursued. In making its decision, the court found, "The harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy."  The court also deemed the potential harms that would occur from the rule as set out by NACS and others to be “speculative.”

NACS filed an appeal with the U.S. Supreme Court within hours of the 6th Circuit decision asking for that court to impose its own stay during litigation. The appeal argued that the OSHA rule “will inflict irreparable harm upon hundreds of thousands of businesses across the retail, wholesale, warehousing, transportation, travel, logistics, and commercial industries that collectively employ millions of Americans.” And, in NACS’ view, the rule would amount to a “transformative” expansion of OSHA’s authority without congressional authorization. By Saturday, five other cases had also filed appeals with the Supreme Court. 

In response to the 6th Circuit’s ruling, OSHA added information to its website stating that it would exercise enforcement discretion in light of the delays imposed by litigation. OSHA indicated that it would not issue citations for violations of any aspect of the rule prior to January 10, 2022, and would not issue citations for violations of the testing requirements prior to February 9, 2022. The time between these dates is similar to those in the rule that required employers to have policies in place by December 6, 2021, and testing/vaccination requirements to be in place by January 4, 2022.

The appeals from the 6th Circuit’s decision have been referred to Justice Brett Kavanaugh, who regularly handles emergency appeals from the 6th Circuit. He may rule on the question of a stay on his own or refer the question to the full court. The Supreme Court is expected to act quickly, before OSHA would issue any citations.