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OSHA Employer Vaccine Mandate Court Case Likely Will be Resolved by Supreme Court

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Last week, the US Judicial Panel on Multidistrict Litigation issued a decision consolidating more than two dozen cases challenging the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to require their employees to either get vaccinated against COVID-19 or be subject to weekly testing into one case. The case will be heard by the 6th Circuit Court of Appeals; a court largely dominated by Republican appointed judges. This latest development follows the 5th Circuit Court of Appeals upholding its previous stay of the ETS earlier this month and directing that OSHA “take no steps to implement or enforce” the ETS. OSHA has stated it will adhere to the court’s decision.

Since the release of OSHA’s ETS on November 4, numerous lawsuits have been filed challenging its legality. Due to the 5th Circuit Court of Appeals’ injunction, the rule has since been paused. The fluid nature of the current court case, the upcoming ETS deadline of December 5 and the ETS comment period deadline of December 6 have created a lot of confusion about what actions businesses should take. At this juncture, businesses are faced with whether they should prepare for the ETS to be upheld, ignore it until the courts issue a final ruling or simply slow walk implementation while monitoring progress. Regardless of the case outcome in the 6th Circuit Court of Appeals, it is highly likely that the losing side will appeal to the Supreme Court for a final decision. This entire scenario is predicted to culminate with a final decision in roughly mid-December. However, certain court rulings and updates to implementation dates are anticipated before then.

Despite the uncertain outcome of the ETS litigation, NRMCA will continue to advocate on and monitor the ETS while updating members on its changing status. Click here for more information on how the ETS could impact the ready mixed concrete industry and here to review the specifics of the ETS.

For more information, contact Kevin Walgenbach at


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