As noted in Parsons Behle & Latimer’s mid-November client alert, the Judicial Panel on Multidistrict Litigation (JPML) was tasked with selecting by lottery one Circuit Court to handle the numerous appeals to OSHA’s Emergency Temporary Standard (ETS) regarding vaccinations, testing and masking for employers with more than 100 employees. The Sixth Circuit was selected, and on the evening of Dec. 17, 2021, a Sixth Circuit panel issued its decision to lift the Fifth Circuit’s previously issued stay of the ETS. In short, the ETS is “live” again and applicable to employers with more than 100 employees (with certain exceptions for federal contractors and health care workers).

In its decision, a Sixth Circuit panel held that, “[t]he ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.” The Sixth Circuit also noted, in response to arguments that the vaccine mandate exceeded OSHA’s statutory authority that the “statutory language unambiguously grants OSHA authority for the ETS…[that] the OSH Act confers authority on OSHA to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses in the workplace.”

In response to federalism concerns raised by Petitioners and the Fifth Circuit, the Sixth Circuit decision stated that “although public health issues have traditionally been a primary concern of state and local officials, Congress, in adopting the OSH Act, decided that the federal government would take the lead in regulating the field of occupational health.” (Internal punctuation omitted).

The issue frequently raised by employers is the costs and burden of the ETS on businesses. On this issue, the Sixth Circuit pointed to OSHA’s detailed economic analysis indicating that the cost of compliance would not be overly burdensome.

A Department of Labor spokesperson announced on Sat., Dec. 18, that it will not issue citations for non-compliance with provisions of the ETS until Jan. 10, 2022, and that citations for compliance with the testing mandate will not be issued until Feb. 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Several states and businesses have already filed applications for stay with the United States Supreme Court. The states that have petitioned thus far include Alaska, Arizona, Idaho, Montana, Utah and Wyoming, among others. The United States Supreme Court will render the final decision on the matter.  

Pending a decision from the United States Supreme Court, Parsons Behle & Latimer continues to recommend that companies with 100 or more employees make reasonable, good faith efforts to prepare to meet the ETS requirements by 2022. For an explanation of the various requirements of the ETS, click here. Parsons will provide a further alert once the United States Supreme Court weighs in. In the meantime, please contact Sean Monson at (801) 532-1234 or email or Amy Lombardo at (208) 562-4900 or send an email to, if you have any questions about the ETS.