Supreme Court to Hear Challenges to OSHA Vaccine/Testing ETS

Last week, the United States Supreme Court announced it will hear oral arguments on January 7, 2022, regarding the ongoing legal challenges to OSHA’s Emergency Temporary Standard (ETS) mandating companies with 100 or more employees require vaccinations against COVID-19 or undergo weekly testing. On the same date, oral arguments will occur related to challenges to the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (IFR), which requires virtually every health care worker in the country to be vaccinated. It deferred ruling on whether to block implementation of the new rules until after hearing the challenges.

The Supreme Court’s announcement came just days after the United States Court of Appeals for the Sixth Circuit lifted the stay of enforcement on the OSHA ETS. Following the Sixth Circuit’s decision, OSHA announced that it will begin enforcing the ETS on January 10, 2022. However, it will not issue citations for noncompliance with the ETS testing requirements prior to February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance.

As AED has stated previously, the best course of action is to be prepared to comply with the ETS as early as January 10.

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.

AED will continue to provide updates. In the meantime, should you have questions, please contact AED’s General Counsel Michael A. Airdo at 312-506-4480 or


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