On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation randomly assigned the U.S. Court of Appeals for the Sixth Circuit to hear legal challenges to the vaccine emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, affecting employers with 100 or more employees, is summarized here.

The Sixth Circuit panel will now consolidate all existing petitions and rule on challenges to the ETS. The court has not yet made any decisions or set any briefing schedules. Five petitions have already been filed in the Sixth Circuit, consolidated under the case Bentkey Services v. OSHA. It is likely that the panel will ultimately review and address the stay issued by the Fifth Circuit, described here. The Sixth Circuit has more judges appointed by Republican presidents than Democratic presidents and is generally thought to lean conservative although it is unknown what panel will hear the case. It is possible that the challenges will eventually reach the U.S. Supreme Court.

OSHA has announced that it will not move forward with enforcement of the ETS while these legal challenges are pending.

Employers should continue to monitor developments in this quickly changing legal landscape and consult with experienced legal counsel regarding any questions about the status and implementation of the ETS, including the applicability of any state laws and regulations regarding vaccination.