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Wednesday, October 21, 2026

OSHA's “Vax-or-Test” ETS: Where Do We Go From Here? (US) - Employment Law Worldview

By now, employers know that on January 13, the United States Supreme Court stayed the controversial “Emergency Temporary Standard” (ETS) issued by the U.S. Occupational Safety Administration (OSHA). (See our post discussing the Court’s ruling here). Now that the dust has settled somewhat, employers that would have been subject to the ETS had the Supreme Court not stayed it – those with 100 or more U.S. employees – have been left to grapple with what, if any, actions they should take now that the ETS has been put on hold. Should they rescind polices put in place solely to comply with the now-stayed ETS? Can they keep those policies in place, and implement them, notwithstanding the stay? What should they do with the information they collected, as they were required to do under the ETS, concerning their employees’ vaccination status?

Before getting into those issues, however, let’s first establish what the status of the ETS is as of this moment. Although the Supreme Court majority that stayed the ETS strongly suggested that OSHA exceeded its authority when it issued the ETS, the Court did not invalidate the ETS. Instead, the Supreme Court stayed the ETS – which means it is on hold – pending consideration of the merits of the legal arguments related to it. The Supreme Court ordered the case back to the United States Court of Appeals for the Sixth Circuit for that court to hear the merits of the parties’ arguments for and against the ETS. But, importantly, the Supreme Court’s...



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