The U.S. Court of Appeals for the Fifth Circuit on November 6 granted an emergency stay of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard requiring businesses with 100 or more employees to vaccinate their workforce against COVID-19.
The emergency temporary standard (ETS) was published in the Federal Register on November 5 and gave employers 30 days to comply with its requirements. The ETS also requires employees who do not receive the COVID-19 vaccine to submit a negative COVID-19 test on at least a weekly basis, as well as to wear a mask while at work and near others. The testing requirement goes into effect 60 days from the publication of the requirement.
OSHA found that employees face “a grave danger of severe health effects or death from exposure to SARS-CoV-2,” which vaccinated individuals did not face. The “grave danger” posed to unvaccinated workers, as well as the inability of existing law to adequately protect workers in the agency’s view, is the basis for OSHA’s vaccination requirement.
However, the U.S. Court of Appeals for the Fifth Circuit found there were “grave statutory and constitutional issues” with OSHA’s vaccination mandate. The court ordered the mandate stayed pending further action, but did not elaborate on what specific statutory and constitutional issues it found in the mandate in its order.
The plaintiffs in B.S.T. Holdings, L.L.C. et al. v. Occupational Health and Safety Administration et al, included a number of large-scale employers and several states. Texas, Louisiana, Mississippi, South Carolina, and Utah were among the plaintiffs. Following the publication of OSHA’s rule, 26 states filed or joined lawsuits seeking to block OSHA’s mandate.
The fifth circuit’s order came days after the Supreme Court denied an appeal for emergency injunctive relief in a lawsuit Liberty Counsel brought on behalf of a group of anonymous plaintiffs it says represent Maine healthcare workers.
The lawsuit was seeking to block enforcement of Maine’s requirement that healthcare workers be vaccinated against COVID-19, which began on October 29. While federal law allows philosophical and religious exemptions to vaccination requirements, Maine recently removed those exemptions from state statute. Liberty Counsel’s lawsuit argued that the state’s lack of religious and philosophical exemptions is a violation of the First Amendment and Title VII of the Civil Rights Act, which prohibits discrimination on the basis of religion.