Ohio-based federal appeals court to hear challenge to OSHA ETS

Washington — The 6th U.S. Circuit Court of Appeals will hear a consolidated challenge to OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking as a result of a Nov. 16 lottery conducted by the Judicial Panel on Multidistrict Litigation.

The lottery to decide which appeals court would hear the challenge was needed because 27 petitions had been filed for review in 12 appeals courts. On Nov. 12, the 5th Circuit, based in New Orleans, halted the implementation and enforcement of OSHA’s ETS.

A three-judge panel from the Cincinnati-based 6th Circuit will weigh in on the ETS. At press time, no hearing date had been set.

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and wear a face covering while indoors or in a vehicle “with another person for work purposes.”

The ETS directed employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations.

According to an OSHA fact sheet, the ETS wouldn’t apply to employees who work from home permanently, who work “exclusively outdoors” or who report to a workplace where other individuals aren’t present.

The ETS was immediately challenged in the courts, with the 5th Circuit on Nov. 7 granting a temporary stay in a case brought by Louisiana, Mississippi, South Carolina, Texas, Utah, businesses, and religious and advocacy groups.