As we previously reported here, the United States Judicial Panel on Multidistrict Litigation conducted a lottery to determine which of the thirteen federal appeals courts would hear the consolidated cases challenging the Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination or masking/testing requirements for large employers. Drawing from a drum, the Sixth Circuit was selected. The Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee, is considered a conservative circuit. Democratic presidents Bill Clinton and Barack Obama appointed 5 of the Sixth Circuit’s active judges, while Republican presidents George W. Bush and Donald Trump appointed the remaining 11.
All of the challenges to the OSHA ETS will now be consolidated before a three-judge panel of Sixth Circuit judges in Cincinnati, Ohio. That panel, which has not yet been named, will have the opportunity to lift or retain the stay that the Fifth Circuit put in place on November 6, and reaffirmed on November 12. Regardless of the Sixth Circuit’s ruling, the United States Supreme Court is likely to have the final word on the ETS.
Although the ETS remains stayed, we recommend that covered employers continue to prepare to comply, as the stay could be lifted at any time, leaving employers little time to prepare.