Luck Of The Draw: The Fate Of OSHA’s Vaccine Mandate Now Is In The Hands Of The Sixth Circuit

November 16, 2021 | By Melissa M. Blanco

As HR Legalist reported, the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) regarding vaccination requirements is in purgatory.  While the United States Court of Appeals for the Fifth Circuit permanently blocked OSHA from enforcing its mandate, the White House encouraged employers to voluntarily comply with the ETS.  In light of the contradictory instructions, many employers were left confused and questioning which steps to take next.

Today, the confusion is closer to resolution.  Following the circuit-court lottery, the Sixth Circuit, which encompasses Kentucky, Michigan, Ohio, and Tennessee, was officially selected as the court responsible for deciding the fate of the ETS. A three-judge panel from the Sixth Circuit will now consider lifting the Fifth Circuit’s stay of the ETS or allowing the rule to remain in place, but we expect the issue will ultimately be decided by the Sixth Circuit sitting en banc.

While judges are supposed to be neutral and objective, partisanship is an important consideration when trying to predict whether the Sixth Circuit will revive the ETS.  It is expected that Democratic-appointed judges would be more supportive of the ETS than their Republican-appointed colleagues. The Sixth Circuit has eight Democrat-appointed judges and twenty Republican-appointed judges. In light of this political make up, the ETS appears less likely to be upheld, though that depends somewhat on the three judges selected to serve on the panel. 

Notwithstanding this prediction, litigants are likely to seek the United States Supreme Court’s intervention.  Accordingly, the ETS’s fate likely will remain uncertain for the foreseeable future ¹.

Despite its uncertain fate, prudent employers should be prepared to comply with the ETS—at least until it is clear that proponents of the ETS are unsuccessful at the Sixth Circuit and will not seek Supreme Court review.  If the Sixth Circuit lifts the stay, employers likely will be required to implement the necessary policies in accordance with the ETS’s deadlines, which HR Legalist previously has outlined. As always, HR Legalist will continue monitoring developments related to the ETS and will provide updates as soon as practicable.  In the interim, employers trying to comply with the ETS should contact Obermayer’s Labor & Employment attorneys for assistance. 

¹The Fifth Circuit’s decision to stay the ETS—and the Sixth Circuit’s selection as the court responsible for deciding the ETS’s fate—has no impact on the healthcare industry or federal contractors. While workers have commenced lawsuits challenging the rules applicable to these industries, no court has yet halted these rules. Accordingly, all healthcare- and federal-contractor-related rules remain in effect.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Melissa M. Blanco


Melissa is an attorney in the Litigation Department, focusing her practice on restrictive covenant and trade secret cases, commercial litigation, and appellate matters. In her position, Melissa has worked to secure preliminary...

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