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Stay of President Biden’s Shot-or-Test Mandate Lifted by 6th Circuit Court of Appeals

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Late Friday afternoon, the 6th Circuit Court of Appeals reinstated the Biden administration’s vaccine and testing requirement for private employers with 100 or more employees.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS) for private employers with 100 or more employees.  Under the ETS, by January 4, 2022, all employees of said employers must be vaccinated or must wear face coverings and submit to weekly COVID testing.  Almost immediately, challenges were launched in several courts throughout the United States.

On November 6, 2021, the 5th Circuit Court of Appeals issued a stay of the mandate, placing the entire ETS on hold.  Because of the multitude of challenges around the country, the cases were consolidated and a random drawing was held to determine the Court that would hear all matters.  The 6th Circuit Court of Appeals was selected.

Shortly thereafter, the Biden Administration filed a petition to lift the stay imposed by the 5th Circuit.  The matter was briefed by all applicable parties.  Late Friday afternoon, a three-judge panel of the 6th Circuit Court of Appeals, in a 2-1 decision, lifted the stay.

Under the original ETS, by December 5, 2021, all unvaccinated employees were required to start wearing masks in the workplace.  All provisions of the ETS, including weekly testing for unvaccinated workers, must be put in place by January 4, 2022.

An appeal of this decision has already been filed with the US Supreme Court.  With so much uncertainty at this point, it is anticipated the Supreme Court will act swiftly to provide some direction going forward.  For now, all private employers with 100 or more employees should begin to take steps to implement the provisions of the ETS.  We will continue to provide updates as developments arise.

If you have any questions or concerns, please contact Joel S. Aziere at jaziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.

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