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Appeals Court Lifts Stay to OSHA Vaccination ETS (Updated)

On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the stay of OSHA's Emergency Temporary Standard (ETS) on mandatory vaccination or weekly testing.  In a 2-1 opinion written by an Obama appointee, and joined in by a Bush appointee, the Sixth Circuit dissolved the nationwide stay previously issued by the Fifth Circuit on November 6, 2021.  A Trump appointee dissented.  In addressing the issue of whether a stay pending judicial review is merited, a majority of the three-judge panel found that "the harm to the government and public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy."  Among other things, the court noted that employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly.  The dissenting judge stated that the petitioners had shown a likelihood of success on the merits of their challenge to the OSHA ETA.  The dissenting judge stated it was clear that "the Secretary of Labor lacks statutory authority to issue the mandate . . . and the Secretary made no finding that the emergency rule is necessary for any sense even approaching indispensable."  

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