The U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, on November 12 granted a motion to stay the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that requires U.S. companies with at least 100 employees to mandate COVID-19 vaccinations or administer weekly testing.

The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” In response, OSHA said: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

The current litigation has now moved to the Sixth Circuit Court of Appeals. When lawsuits are filed with multiple courts challenging the same agency order, the agency must notify the judicial panel on multidistrict litigation, which will randomly select one court to hear the challenges. The Sixth Circuit Court of Appeals, based in Cincinnati and which covers Kentucky, Tennessee, Ohio, and Michigan, was selected through the lottery system on November 16 to hear the consolidated action and will be authorized to uphold or lift the Fifth Circuit’s stay that is halting the rule.

The Sixth Circuit is composed of 11 judges appointed by Republican presidents and five appointed by Democratic presidents. Supreme Court Justice Brett Kavanaugh is the SCOTUS justice that oversees the Sixth Circuit.

A three-judge panel from the Sixth Circuit will now hear the case, but parties can petition the court to transfer the case to another circuit. Many expect that the Supreme Court will ultimately become the final arbiter on the case.

 

 

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