On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation randomly assigned the U.S. Court of Appeals for the Sixth Circuit to hear legal challenges to the vaccine emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, affecting employers with 100 or more employees, is summarized here.

The Sixth Circuit panel will now consolidate all existing petitions and rule on challenges to the ETS. The court has not yet made any decisions or set any briefing schedules. Five petitions have already been filed in the Sixth Circuit, consolidated under the case Bentkey Services v. OSHA. It is likely that the panel will ultimately review and address the stay issued by the Fifth Circuit, described here. The Sixth Circuit has more judges appointed by Republican presidents than Democratic presidents and is generally thought to lean conservative although it is unknown what panel will hear the case. It is possible that the challenges will eventually reach the U.S. Supreme Court.

OSHA has announced that it will not move forward with enforcement of the ETS while these legal challenges are pending.

Employers should continue to monitor developments in this quickly changing legal landscape and consult with experienced legal counsel regarding any questions about the status and implementation of the ETS, including the applicability of any state laws and regulations regarding vaccination.

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Photo of Jill L. Ripke Jill L. Ripke

Jill Ripke defends companies in employment and independent contractor class action matters dealing with claims relating to independent contractor status, misclassification, unpaid overtime, unpaid meal and rest breaks, and unpaid off-the-clock work.

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Photo of Chris Wilkinson Chris Wilkinson

Chris Wilkinson maintains a broad litigation and advice practice in labor and employment, wage-and-hour, federal contractor compliance, equal pay, government relations, and administrative law. He represents multinational employers, advising and counseling on the full range of employment and compliance matters arising out of…

Chris Wilkinson maintains a broad litigation and advice practice in labor and employment, wage-and-hour, federal contractor compliance, equal pay, government relations, and administrative law. He represents multinational employers, advising and counseling on the full range of employment and compliance matters arising out of federal and state laws.

Chris’ current practice focuses on counseling employers and litigating pay equity matters arising out of federal and state claims. He helps clients navigate large-scale government investigations and litigation arising out of discrimination, retaliation, whistleblower, and other enforcement matters. He also investigates highly sensitive matters at the executive level, ensures legal compliance in diversity and inclusion efforts, and strategizes regarding labor and employment risks arising out of the COVID-19 pandemic.

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