On November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the ETS (including the Fifth Circuit ruling) before the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit has jurisdiction over federal appeals from the states of Kentucky, Michigan, Ohio and Tennessee. Of the 16 judges, 5 have been appointed by Democratic presidents and 11 have been appointed by Republican president
On Friday, November 12, the U.S. Court of Appeals for the Fifth Circuit issued an order staying enforcement and implementation of the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 “vaccine or test” emergency temporary standard (ETS). The order was issued after an expedited briefing and in response to a petition filed by various employers, states, religious groups, and individual citizens seeking a temporary stay of the ETS pending judicial review to determine if a permanent injunction of the ETS should issue. While the Fifth Circuit will not necessarily be the final word on the matter, the ruling signals that at least one federal appellate court has made a preliminary determination that the challenge to the ETS will likely succeed on the merits. Pending review, the ruling effectively nullifies the ETS as OSHA is barred from both enforcing and implementing it.