The highest court in the land has, at long last, weighed in on the permissibility of the federal government’s November 2021 vaccine-or-test rule for large employers. Specifically, on January 13, 2022, the U.S. Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which had required that private employers with 100 or more U.S. employees adopt either (1) a mandatory vaccination policy or (2) a policy that allows employees to choose between vaccination and submission of weekly COVID tests (as we previously discussed here).

As a result, employers previously covered by the ETS will not have to comply – at least for now – with its requirements. Below we will discuss the Court’s ruling and, equally if not more importantly, what this means for U.S. employers.

Continue Reading Supreme Court blocks federal vaxx-or-test rule for large employers

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements

As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.

Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”

There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”   
Continue Reading OSHA ETS: Sixth Circuit denies initial hearing en banc

On November 16, 2021, the Sixth Circuit was selected via a lottery to hear the consolidated challenges made against the recent OSHA Emergency Temporary Standard (the ETS). As background, on November 5, 2021, OSHA published the ETS that would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing.

While all eyes had previously been on the Fifth Circuit, it is now the Sixth Circuit that’s in the spotlight. Not surprisingly, there has been a flurry of activity in the case. There are currently two main issues pending before the court that will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting that the full court – and not just a three-judge panel – decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.
Continue Reading OSHA COVID-19 rule: Sixth Circuit case status update

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).


Continue Reading The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies