Sixth Circuit U.S. Court of Appeals Reinstates Vaccine Mandate for Businesses With 100 Employees

By Brett W. Johnson, Ryan J. Regula and Mary Colleen Fowler

On Friday, December 17, 2021, the Sixth Circuit U.S. Court of Appeals lifted the stay on the Occupational Safety and Health Administration’s vaccine mandate (the “OSHA Rule”). The OSHA Rule requires businesses with 100 or more employees to implement the Biden Administration’s vaccine-or-testing rule, which means employees must be fully vaccinated or, if not fully vaccinated, must wear masks in the workplace and undergo weekly testing for COVID-19.

Previously, the OSHA Rule had been blocked by the Fifth Circuit U.S. Court of Appeals. Several similar vaccine court challenges were consolidated for review and the Sixth Circuit U.S. Court of Appeals was tasked for the review. In its ruling, the Sixth Circuit lifted the vaccine mandate hold because the Government “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

Following the Sixth Circuit decision, the Labor Department released a statement indicating that businesses will have until January 10, 2022 to develop compliant policies with the OSHA Rule. It also provided that the Department will not issue citations for noncompliance until February 9, 2022 for businesses making “good faith” efforts to implement the testing requirements.

On December 7, 2021, the Eleventh Circuit upheld the stay for the Federal Contractor Mandate. Thus, federal contractors do not have to implement the vaccine mandate as provided within the Staffing for Adequate Fire and Emergency Response Grants (SAFER) Guidance. However, federal contractors with 100 or more employees will likely be subject to the OSHA Rule.

On Monday December 20, 2021, several interested parties, including business groups and religious nonprofits, have appealed the decision to Justice Brett Kavanaugh because he has jurisdiction over the Sixth Circuit. It is anticipated that Justice Kavanaugh will refer the matter to the full Supreme Court.   

For now, the federal contractor vaccine mandate remains ineffective. Yet, businesses, including federal contractors, with 100 or more employees must work to develop compliant OSHA Rule policies by January 10, 2022, and implement testing requirements by February 9, 2022 for employees who are not fully vaccinated. All businesses should continue to work with their counsel to keep abreast of developments in these cases. Businesses should also review current policies, related justifications, and develop a potential plan of action to address the latest developments.