Sixth Circuit Dissolves Vaccine/Testing ETS Stay

On the evening of December 17, the U.S. Court of Appeals for the Sixth Circuit ruled with the government and dissolved the stay put in place by its colleagues from the Fifth Circuit, effectively allowing OSHA to move forward with implementing its Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to either require its employees are vaccinated or tested weekly.

Business groups immediately filed appeals and ultimately, the U.S. Supreme Court will decide the constitutionality of the vaccine and testing mandate. OSHA also released a statement announcing it will use its enforcement discretion and not issue citations for noncompliance with any requirements of the ETS before January 10. Futhermore, OSHA will not issue citations with the ETS’s testing requirements before February 9, as long as the employer is exercising reasonable, good faith efforts to come into compliance.

As AED has stated previously, there will be many twists and turns with respect to the ETS and the litigation, and the best course of action is to be prepared to comply with the ETS as early as January 10. AED will continue to keep you informed.

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. AED also joined 50 other business organizations on comments recently filed with OSHA detailing our concerns with the ETS.

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


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