On November 16, 2021, the Judicial Panel on Multidistrict Litigation, through a lottery system, drew the 6th Circuit as the U.S. Court of Appeals that will hear the consolidated lawsuits against the Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) published in the Federal Register on November 5, 2021. The OSHA ETS, which would have required employers with 100 or more employees to require all employees to be vaccinated against COVID-19 or undergo weekly testing and face masking, was permanently stayed by a three-judge panel of the 5th Circuit Court on November 12, 2021, as an unlawful exercise of OSHA’s authority.
However, because challenges to the ETS were filed in eleven other Circuit Courts, the Judicial Panel conducted a lottery to assign all the pending cases to a single Circuit to promote judicial economy. Now, the 6th Circuit will hear all the challenges to the ETS in a single, consolidated manner, and may maintain the stay issued by the 5th Circuit, modify the stay, or dismiss the stay and uphold the ETS.
The 6th Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee and is based on Cincinnati, Ohio. The Court has sixteen judges: eleven appointed by Republican presidents and five by Democratic presidents.
The 6th Circuit could order expedited briefing and hear the case relatively quickly. Regardless of its decision, the OSHA ETS will certainly be appealed to the U.S. Supreme Court for a final decision.
In the meantime, employers should continue to speak with their labor and employment council to consider next steps in developing vaccine/testing policies.
OFW will continue to monitor for updates related to COVID-19, vaccine mandates, and impact to USDA/FDA regulated entities. If you have any further questions, please contact us.