On November 12, 2021, the 5th Circuit Court of Appeals delivered another blow to the Biden administration’s vax or test rule for employers with 100+ employees. It reaffirmed its recent stay, meaning the rule is on pause for the time being, and the Court explicitly stated that the rule is “fatally flawed.” The Court said the rule exceeds OSHA’s authority, violates the US Constitution, intrudes on states’ rights to police power, and noted that there is no emergency with COVID-19. As expected, the Court clarified that it’s Congress’s job to make laws, not the President’s.
Here’s some choice quotes from today’s reaffirmed stay:
“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…”
“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.”
OSHA attempts to “shoehorn [its authority over] an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life threatening to a vast majority of employees.”
Over half of US states have sued the Biden administration over the OSHA rule, titled the Emergency Temporary Standard, COVID-19 Vaccination and Testing.
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For more information on OSHA’s Emergency Temporary Standard, check out our summary here.
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