Yesterday afternoon, the Judicial Panel on Multidistrict Litigation announced it had randomly selected the Sixth Circuit Court of Appeal to hear the consolidated challenges to the OSHA emergency temporary standard (“ETS”) requiring large private employers to vaccinate or test. The majority of the Sixth Circuit’s judges were appointed by Republican administrations.

Meanwhile, in response to the Fifth Circuit Court of Appeal’s renewed stay of the ETS, issued November 12, where the Fifth Circuit ordered OSHA to take no steps to implement or enforce the ETS, OSHA released a statement noting that while OSHA remained “confident in its authority to protect workers in emergencies,” OSHA had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

What the Sixth Circuit will do with regard to the current stay, and what OSHA will choose to do with its suspension of activities to implement and enforce the ETS remains to be seen.

Lowndes will continue to provide updates as to legal developments concerning the ETS as they transpire.