OSHA Suspends Emergency Temporary Standard on COVID-19 Vaccinations and Testing for Employers with 100 or More Employees
On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) that establishes minimum COVID-19 vaccination and testing requirements for private employers with 100 or more employees throughout the United States.
Shortly after the ETS was published, several states and businesses sued to declare that the rule was unconstitutional and beyond OSHA‘s statutory authority. On November 6, 2021 the Fifth Circuit Court of Appeals (based in New Orleans) issued a very short preliminary ruling “staying” implementation of the ETS pending further briefing in the court. Then, on November 12, 2021 the Fifth Circuit entered a long opinion in which it has issued a preliminary stay of the law.
In doing so, the court signaled in the strongest of possible terms that it was poised to find that the rule does exceed OSHA‘s statutory authority in several ways and is unconstitutional.
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