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AED Vaccine Mandate Update: OSHA files Emergency Motion Seeking to Remove Hold on Implementation

Yesterday, the Occupational Safety and Health Administration (OSHA) filed an emergency motion in the U.S. Court of Appeals for the Sixth Circuit, seeking to dissolve the Fifth Circuit’s stay of its recently issued vaccine mandate.

Earlier this month, the Fifth Circuit Court of Appeals put a legal “stay”—or hold—on the OSHA Emergency Temporary Standard (“ETS”), calling it “unlawful” and “probably unconstitutional.” The consolidated cases challenging the ETS were subsequently assigned to the U.S. Court of Appeals for the Sixth Circuit.

In its emergency motion, OSHA argues it is likely to succeed against challenges to the ETS because the agency reasonably concluded that the ETS is necessary to address a grave danger, and that the risk to employees in staying the ETS outweighs the harm to employers of compliance with the ETS and “would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects and tremendous expenses.” OSHA also argues that the Fifth Circuit employed a flawed statutory interpretation in arriving at its decision, and the Fifth Circuit’s “constitutional concerns” were mistaken.

OSHA is also seeking clarification as to the scope of the Fifth Circuit’s stay. The Fifth Circuit ordered OSHA to refrain from taking steps to implement or enforce the ETS. If the stay is to remain in effect, OSHA is requesting permission to provide pre-enforcement guidance to the public and take internal steps, such as drafting guidance and training employees on enforcement of the ETS, in preparation if the federal government prevails in litigation.

AED, through its leadership role in the National Association of Wholesaler-Distributors, is challenging the constitutionality of the mandate and working with other business organizations to urge OSHA to provide greater flexibility and modifications to the ETS, should court challenges be unsuccessful.

As AED has stated previously, there will be many twists and turns with respect to the ETS and the litigation. Even though the mandate is in limbo, the best course of action is to be prepared to have to follow the ETS as early as December 4, 2021. AED will continue to keep you informed.

In the meantime, should you have questions, please contact AED General Counsel Michael A. Airdo at 312-506-4480 or [email protected]

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