November 17, 2021

On November 16, 2021, the Sixth Circuit Court of Appeals was randomly selected to review the consolidated petitions challenging the Occupational Safety & Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which was published on November 5, 2021. The Fifth Circuit Court of Appeals had already granted a motion to stay enforcement of the ETS pending review of a legal challenge, which will now be heard as part of the consolidated matter before the Sixth Circuit. The Sixth Circuit has the authority to continue or lift the stay, but for now, OSHA has stated that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”[1] This could change quickly, so covered employers should be prepared to react if the stay of enforcement is lifted.

Petitions for review have been filed by challengers of the ETS in all 12 federal circuit courts of appeal, and all these cases are now part of the consolidated case in the Sixth Circuit. The consolidated cases will be heard by a three-judge panel of the Sixth Circuit, after which one or more parties will likely seek review by the full court, and, ultimately, the United States Supreme Court.

If the courts uphold the ETS or allow its implementation pending legal review, covered employers must develop, implement, and enforce a mandatory COVID–19 vaccination policy or a policy requiring employees to either get vaccinated or elect to undergo regular COVID–19 testing and wear a face covering at work in lieu of vaccination. The ETS is open for written comments until December 6, 2021.

For questions about the ETS or state COVID-related mandates, contact us.

[1] OSHA, https://www.osha.gov/coronavirus/ets2 (last visited Nov. 17, 2021)