Seyfarth Synopsis: The Judicial Panel on Multidistrict Litigation (MDL) lottery selected the U.S. Court of Appeals for the 6th Circuit to hear the consolidated legal challenges to OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), a result that anti-ETS parties may welcome.

The Sixth Circuit has been randomly assigned by a November 16, 2021 MDL lottery to hear the consolidated legal challenges to OSHA’s ETS.  A Court with a majority of judges appointed by Republican practice in its active and senior ranks, including many from the Trump years, the Sixth Circuit will now determine whether to maintain the U.S. Court of Appeals for the Fifth Circuit’s November 12, 2021 stay and will be tasked with guiding the ETS contests toward resolution.

This is not the result the government, unions, and like-minded entities were hoping for, and they will now pitch their positions to the Sixth Circuit, attempting to convince the Court that the ETS is necessary to protect workers from a grave danger.  Those seeking to overturn the ETS will argue that the Court’s sister circuit got the decision right and will rely on the Fifth Circuit’s stay opinion to continue their push to ensure the ETS never sees the light of a covered workplace.  This result could well continue OSHA’s less-than-stellar streak with ETS challenges.

As employers consider how this latest twist impacts their compliance efforts, your Seyfarth attorneys are prepared to help you navigate your chosen course.