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The Sixth Circuit “Wins” the Lottery and Will Hear the Many Lawsuits Challenging the Now-Stayed OSHA ETS


Ashley Kelly, Henry Perlowski, and Theresa Kananen

Submitted by Firm:
Arnall Golden Gregory LLP
Firm Contacts:
Edward Cadagin, Henry M. Perlowski, Teri A. Simmons
Article Type:
Legal Update

On November 16, 2021, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) was selected to hear the many legal disputes relating to OSHA’s recent Emergency Temporary Standard (“ETS”) that proliferated in the days following OSHA’s announcement of the ETS on November 4, 2021. On its face, the ETS requires private employers with 100 or more employees to, among other things, ascertain the vaccination status of their workers by December 5, 2021, and implement a mandatory vaccination policy or require their unvaccinated workers to submit to weekly COVID testing by January 4, 2022. Immediately following the publication of the ETS, multiple states, trade associations, and private employers sought injunctions to stay the ETS and declare it unconstitutional, with unions and other groups filing lawsuits seeking to uphold the ETS. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) stayed the ETS, and reaffirmed that holding on November 12, 2021, finding that the ETS is likely unconstitutional for a number of reasons.

In response to this ruling, the Biden Administration exercised its right to invoke Judicial Panel on Multidistrict Litigation procedures wherein the names of all of the federal circuit courts with pending lawsuits over the ETS (all of them) were placed in a drum, with one name then drawn at random. The “winner” of this lottery then would hear all pending legal challenges regarding the ETS. Yesterday, the lottery was conducted, and the Sixth Circuit, which includes the States of Kentucky, Michigan, Ohio, and Tennessee, was drawn.

As the winner of this lottery, the Sixth Circuit now will assign a panel of three judges, who will be selected randomly, to hear the challenges to the ETS. The Sixth Circuit’s bench is comprised of 28 judges, with 20 judges having been appointed by Republican presidents. The composition of the Sixth Circuit standing alone suggests that the Administration received a “tough” draw in its efforts to secure the repeal of the Fifth Circuit’s stay order and preserve the ETS.

The timeline on which the Sixth Circuit will consider this matter has not yet been announced, but the court will likely designate its three-judge panel and set a briefing schedule in the next few days. Regardless of the Sixth Circuit’s ultimate ruling on the ETS, the future of the ETS certainly will be appealed to the Supreme Court of the United States, understanding that the Supreme Court would have to agree to hear the dispute. In other words, Supreme Court consideration of the ETS is not certain.

AGG will continue monitoring the ETS’s progress through the Sixth Circuit, and we will provide updates, including if the current stay has been lifted or modified in any respects, as decisions are handed down.