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Nov 2021
17
November 17, 2021

OSHA ETS Challenges Transferred to the Sixth Circuit Court

Yesterday, the federal courts assigned to the United States Court of Appeals for the Sixth Circuit Court all of the challenges to OSHA’s Emergency Temporary Standard (ETS) requiring COVID-19 vaccinations or weekly testing for workers at most companies with 100 or more employees. There are at least 34 pending ETS challenges that will be consolidated in the Sixth Circuit, including the cases in which the Fifth Circuit Court of Appeals issued a nationwide stay of the ETS last week. 
 
The Fifth Circuit’s stay will remain in place until the Sixth Circuit decides whether to modify, continue or terminate it. If the Sixth Circuit does not act, the stay will continue. The Sixth Circuit set a Monday, Nov. 22, 2021, deadline for filings related to staying the ETS in the challenges that were already pending in the Sixth Circuit. Based on that schedule, we anticipate that if the Sixth Circuit intends to lift the stay, it will issue a ruling around month end.
 
Of the 34 cases that are being consolidated, five of them were already pending in the Sixth Circuit. The court had the second most ETS challenges of the 12 federal appellate courts, suggesting that challengers viewed the Sixth Circuit as a favorable forum.
 
For now, covered employers should keep preparing for the ETS to be implemented in case the Sixth Circuit lifts the stay or upholds the ETS. There is much that remains unknown about how the Sixth Circuit will handle these cases, but we will continue to keep you updated.
 
For additional information on this or other labor and employment related matters, please contact your Warner attorney or a member of Warner’s Labor and Employment Practice Group.

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