OSHA’s Covid vaccination/testing mandate suspended
By Jenny LescohierNovember 17, 2021
OSHA’s Emergency Temporary Standard (ETS) requiring federal and private contractors with more than 100 employees to ensure Covid vaccination/testing has been suspended after its validity was challenged in federal appeals courts across the country.
On November 6, the Fifth Circuit Court of Appeals (based in New Orleans) issued an opinion staying the ETS pending briefing and expedited judicial review, finding “cause to believe that there are grave statutory and constitutional issues with the mandate.”
On November 12, the Fifth Circuit reaffirmed and extended its initial stay.
Prior to this latest decision, all companies with more than 100 employees - affecting roughly 84 million Americans - were to comply with the ETS stemming from a White House mandate by Jan. 4.
According to a report from the National Law Review, the Fifth Circuit Court found that the ETS exceeds OSHA’s statutory authority. Among other points, petitioners made a “compelling” argument that OSHA has no power to issue an ETS to address an airborne virus that is both widely present in society (i.e., not particular to any workplace) and non-life-threatening to most employees.
The Court also ruled that the petitioners would be irreparably harmed unless the ETS was suspended. Specifically, it found that “the liberty interests of individuals reluctant to get a Covid-19 vaccination are substantially burdened because they have to choose between their jobs and getting vaccinated.”
The Court also stated companies can suffer irreparable harm from the business and financial effects of losing or having to suspend employees, expending and monitoring costs associated with the ETS, diverting necessary resources, and being subjected to penalties for noncompliance.
The National Law Review reported OSHA has suspended all activities relating to the implementation and enforcement of the ETS pending further litigation. However, this is still a temporary ruling and will be appealed, most likely all the way to the Supreme Court, which would make the final decision.