The Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (ETS) for workplace vaccine and testing mandates on November 5, 2021. The next day, the U.S. Court of Appeals for the Fifth Circuit issued an order entering a temporary stay of the mandate, citing concerns over “grave statutory and constitutional issues.”
In their brief, the businesses and employees petitioning the court argued that the ETS exceeds OSHA’s statutory authority or, in the alternative, that the statute is unconstitutional.
Solicitor of Labor Seema Nanda said in a statement that “[t]he Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.” “We are fully prepared to defend this standard in court.”
The government has until 5:00 p.m. on November 8, 2021, to respond, and oral argument is set for November 9, 2021.
For details on the mandate, see this Legal Update contributed by Jonathan P. Kok and Allyson Ruth Terpsma of Warner Norcross + Judd.