The Sixth Circuit “won the lottery” and will decide the fate of the OSHA vax-or-test mandate


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Filed Under: Every Employment Law Blogger Will Be Blogging About This Today.

That lottery I blogged about last week to decide the fate of OSHA’s emergency temporary standard (ETS) happened yesterday. The Judicial Panel on Multidistrict Litigation randomly designated one circuit from among those where lawsuits have been filed.

And the winner is the Sixth Circuit, which is comprised of Ohio, Kentucky, Tennessee, and Michigan. Here is the current composition of the court. While party affiliation doesn’t necessarily lead to a particular outcome, it’s tough to ignore that Republican presidents appointed most judges there.

Reputationally, the Sixth Circuit is not considered as conservative as the Fifth Circuit, which stayed the ETS. But, it’s not exactly the home of free love, socialism, and solar panels either. All told, it’s a good draw for petitioners trying to end the ETS.

If you’re sick of all this ETS talk — it’s putting my kids through college — I can’t tell you how long it will take the Sixth Circuit to decide these consolidated lawsuits. In the interim, the ETS remains stayed. (If you are subject to the federal contractor vaccination mandate or a healthcare employer subject to the CMS mandate, nothing about the Fifth Circuit’s decision changes that.)

Otherwise, stay tuned…


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