Biden Administration Asks the Sixth Circuit to Lift Emergency Stay Placed on OSHA Mandate

Update: December 23, 2021:

Justice Brett Kavanaugh has chosen to allow the full court to preside over applications for another stay on this mandate. These applications were submitted after the Sixth Circuit lifted the stay, declaring the mandate valid and re-enacting it nationwide. SCOTUS will hear oral arguments for the stays on January 7, 2022 and likely rule quickly following such. The first compliance deadline from OSHA is January 10th. Reminder: In Maryland, this mandate will also impact public sector workers. State/local government employees including but not limited to correctional officers, teachers and other school staff, state police and more need to remain vigilant.


Update December 21, 2021:

Following the Sixth Circuit lifting the stay on the OSHA mandate, dozens of new applications for an emergency stay have been submitted to SCOTUS. Justice Brett Kavanaugh is in receipt of these applications and may make the decision on these stay applications on his own pending review by the full court, or he may decide to share the responsibility of this decision with the full panel of Supreme Court justices. Justice Kavanaugh may also decide not to take any action on the stay applications pending a full court review. The Biden administration has until December 30, 2021 to respond to existing applications. Thus, we can expect there won’t likely be any ruling on it before then. But a ruling from SCOTUS before the first deadline of January 10, 2022 is likely.

OSHA has stated they will not take action against employers not in compliance with the ETS/mandate until January 10, 2022, and will not penalize employers not in compliance with testing standing until February 9, 2022 if they are working toward compliance. For employees, this means if your employer allow for a testing option (they don’t have to), you can expect mandatory testing to begin by February 9.

As a reminder, Maryland has a state plan with OSHA. This gives us the benefit of an additional 30 days for our state to choose to enact any ETS issued by OSHA. SO far, Maryland has not taken steps to do so. Informed Choice Maryland does not have any reason to doubt that the Maryland Department of Labor and MOSH will comply if the ETS is upheld, and that will include not just private employers of 100+ employees, but public sector employers of 100+ employees in Maryland as well.


Update: December 17, 2021:

The Sixth Circuit did list this stay, putting back into action. Several appeals have been filed. We will update this story as necessary.



The Biden adminstration has filed a motion with the Sixth Circuit Court of Appeals asking the court to lift the emergency stay placed on the OSHA mandate by the Fifth Circuit. This is possible, and the likelihood of it happening is anyone’s guess at this juncture as a conservative-leaning Sixth Circuit doesn’t guarantee a panel of conservative-leaning judges presiding over the case. Read the full motion below.

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