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Sixth Circuit Selected to Hear Consolidated Challenge to OSHA ETS, after the Fifth Circuit Issues a Stay

November 18, 2021

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring, among other things, that most employees of companies with 100 or more employees submit to weekly COVID-19 testing and wear a face covering while at work indoors. We summarized the ETS in a previous post.

Almost immediately after it was published, the ETS sparked a wave of lawsuits challenging OSHA’s authority to issue such a sweeping mandate without engaging in notice and comment rulemaking.  In fact, through November 15, 2021, lawsuits were pending in 12 different federal Circuit Courts of Appeals across the country.

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