UPDATED Nov. 18, 2021 regarding new information from OSHA.
The Occupational Safety and Health Administration (OSHA) suspended the enforcement of its new vaccine mandate emergency temporary standard (ETS) following a decision from a U.S. Court of Appeals.
On OSHA’s website about the ETS, the page reads: “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 webpage states the decision is based on a motion granted by the U.S. Court of Appeals for the Fifth Court that orders OSHA to “take no steps to implement or enforce” the ETS “until further court order.”
The New Orleans-based U.S. Circuit Court of Appeals upheld its decision to stay the vaccine mandate ordered by President Joe Biden for companies with 100 or more employees to vaccinate their workers against COVID-19. The court declined to lift the stay it placed on the mandate on Nov. 6, specifically on the ETS that OSHA published to enforce the mandate.
The ETS requires businesses with 100 or more employees to either vaccinate their workers or have them undergo regular COVID testing and take safety precautions like wearing a mask by Jan. 4, 2022. Penalties for noncompliance could be as high as $13,653 per violation.
The stay calls for enforcement of the ETS to halt pending adequate judicial review for a permanent injunction, and OSHA is ordered to take no steps to enforce the mandate until further court order. In the court’s opinion published Nov. 15, circuit court judges call the mandate “fatally flawed.”
“The Mandate’s stated impetus—a purported ‘emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to — is unavailing as well,” wrote Circuit Judge Kurt Englehardt.
The opinion further lambasts the ETS, calling it “overinclusive” for applying to virtually all industries and workplaces in the U.S. and “underinclusive” for making no attempt to shield employers with less than the 100 count from the dangers of the pandemic.
“Rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” Englehardt wrote.
The opinion that the ETS is too broad is one expressed earlier this year by the Construction Industry Safety Coalition, made up of 26 industry associations including the National Roofing Contractors Association. In a letter sent in September, the coalition pointed to OSHA’s own assessment that the industry has “low exposure risk” since its workforce has minimal occupational contact with the general public and often completes work outdoors.
“Even with current COVID-19 case counts, there is no evidence to support a finding of a ‘grave danger’ within the low-risk construction industry,” the coalition wrote. “OSHA lacks the authority to issue an ETS mandating vaccinations – or any requirements through an ETS – unless it can demonstrate that the statutory requirements are met. OSHA cannot do so here.”
The Department of Labor didn’t issue an immediate response to the court’s opinion, though its top legal adviser, Solicitor of Labor Seema Nanda, previously said the department is “confident in its legal authority" to issue the ETS.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.”
The stay does not affect the vaccine mandate implemented for federal contractors, which was published earlier this month. The guidelines require federal contractors to be vaccinated by Dec. 8.
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