In the continuing saga of the Occupational Safety and Health Administration’s (OSHA) Vaccination Emergency Temporary Standard (ETS), the U.S. Court of Appeals for the Sixth Circuit has been selected by lottery to hear the cases challenging the ETS that have been filed in other circuit courts. The Sixth Circuit covers cases from Ohio, Kentucky, Michigan, and Tennessee.

OSHA’s Vaccination Emergency Temporary Standard: On Nov. 4, 2021, OSHA released its COVID-19 ETS, which applied to private employers of 100 or more employees. It required, among other things, that employers:

• Develop a mandatory vaccination policy or require weekly testing for those employees not receiving the vaccination.
• Provide up to four hours’ paid time off for employees to receive vaccinations and a reasonable time and paid sick leave to recover from side effects.
• Ensure that non-vaccinated employees wear masks.
• Determine the vaccination status of each employee.

­Challenges and Stay of Implementation: The next day, the Fifth Circuit Court of Appeals stayed implementation of the ETS. Challenges to the ETS were filed in a number of other federal courts of appeals. Attorneys general from 17 states, employers, and several conservative and business organizations were among the challengers. Some unions also filed challenges to the ETS, bringing the total of objections filed to 34.  

One Federal Appeals Circuit Court Will Hear the Combined Cases: In cases involving federal agency action, if challenges are filed in multiple jurisdictions (and the issuing agency requests it), the cases will be consolidated and heard in a single federal circuit. A lottery is held among the federal districts where challenges have been filed within the first 10 days of the agency action. Interestingly, a ping pong ball is drawn from a bin to determine which federal circuit will hear the combined cases. Yesterday, the ping pong ball representing the Sixth Circuit was randomly chosen.

What Happens Now? The Sixth Circuit Court of Appeals sits in Cincinnati, Ohio. There are 16 full-time judges, 11 of whom were appointed by Republican presidents. Initially, a three-judge panel from the Sixth Circuit should be randomly assigned to the case. There is no indication of how long the process will take, and the Sixth Circuit may not have the final say; the dispute may well end up before the U.S. Supreme Court. In the meantime, OSHA has indicated that the ETS’ original deadlines are suspended, pending this litigation.

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