3-judge panel of Sixth Circuit lifts freeze on OSHA vaccine mandate for large companies

A 3-judge panel of the Sixth Circuit has lifted the freeze on OSHA’s large company vaccine mandate (50 employees or more). The 3-judge panel decision was fully fractured, in that one judge wrote an opinion, in which a second concurred, making it technically the majority opinion; the third judge in the panel then wrote a scorching dissent that argued for the freeze’s immediate reinstatement. The dissent concluded with a call for individuals to act — by becoming vaccinated — not OSHA.

(OSHA) cannot even regulate for the sake of the vaccinated; they are not in “grave danger.” Instead, the mandate is aimed directly at protecting the unvaccinated from their own choices. Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the Secretary likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.

The decision is now likely to face both a request for reconsideration by the entire bench of judges who constitute Sixth Circuit — of whom a majority are Republican appointees — and then a request for immediate review by the Supreme Court — where again it will face a majority of Republican appointees. Indeed challengers in the litigation have already filed motions with the Supreme Court requesting the immediate reinstatement of the freeze.

Recognizing that there isn’t now sufficient time for large companies to implement the mandate by the original deadlines  and possibly even recognizing that its own rule is not likely to withstand the next two tiers of review, or is at least likely to face another freeze sooner than later, OSHA has announced it will delay enforcement of its own rules by approximately one month.