December 17, 2021

A three-judge panel of the U.S. Sixth Circuit Court of Appeals ruled that the Biden Administration may move forward with the COVID-19 emergency temporary standard (ETS) mandating vaccination or testing for private employers with 100 or more employees. In a 2-1 ruling, the panel lifted the stay put in place by the Fifth Circuit and reinstated the ETS.

In the decision, the appellate court said that “based on the wealth of information” in its 153-page preamble that explains why the Occupational Safety and Health Administration (OSHA) issued an ETS, “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.” The opinion continued “[i]t is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied. Indeed, OSHA need not demonstrate scientific certainty.” The court felt “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces” and decided to lift the stay.

The case is now likely to be appealed, on an emergency basis, to the Supreme Court.

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