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by Bob Dunlevey of Taft/Law

On December 17, the federal Sixth Circuit Court of Appeals in Cincinnati overturned a prior decision which was blocking President Biden’s controversial vaccination mandate for employers with 100 or more employees. See Decision. OSHA’s Emergency Temporary Standard requires employers to develop a mandatory vaccination policy, unless instead they establish a policy allowing those not fully vaccinated to undergo weekly COVID testing and wear face coverings at the workplace. See detailed analysis of the requirements, including Q&A at Taft’s article here and at OSHA COVID19 Vaccination and Testing ETS/Frequently Asked Questions here. OSHA will not issue Citations for non-compliance before January 10 and will not issue testing Citations before February 9 if a good faith effort to comply is shown. But, compliance with the ETS must start now.

Anticipate this 2-1 Decision will be appealed to the U.S. Supreme Court almost immediately. But, the Supreme Court need not grant review and instead let the Court of Appeals Decision stand.

In light of these unanticipated turn of events, employers should take action now to determine which employees are fully vaccinated and who may resist being vaccinated for various reasons by

disseminating a carefully crafted questionnaire ASAP. Thereafter, each employer needs to consider if it will permit those resisting to instead undergo weekly testing and mask wearing which may be problematic for some employers. Start preparing your written policy now! For a sample questionnaire and policy, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, at or (937) 641-1743.


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