Barely a day and a half after issuance of OSHA’s emergency vaccinate-or-test standard, a federal appeals court has blocked it.
The three-judge panel from the U.S. Court of Appeals for the Fifth Circuit granted a temporary stay to a group of businesses, religious groups, advocacy organizations and several states that had filed a joint petition in court, arguing the administration had overstepped its authority.
The case that the Appeals Court ruled on was BST Holdings v. OSHA. The two page court order said that judges were blocking the regulation “because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” It said the rule was suspended “pending further action by this court.” The court directed the Biden administration to respond by 5 p.m. Monday to the request for a permanent injunction from groups, including Texas, Louisiana, Mississippi, South Carolina and Utah, who opposed to the rule.
Department of Labor Solicitor Seema Nanda states that “We are fully prepared to defend this standard in court.”
“The 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,” Ms. Nanda said.
The Emergency Temporary Standard requires employers with 100 or more employees to ensure that their employees are vaccinated or tested weekly by January 4.
The fifth circuit is notoriously conservative. As former OSHA head David Michaels tweeted:
The same activist court that refused to stay Texas’ law that permits bounty hunters to sue anyone who aids an abortion after 6 weeks of pregnancy has stayed an OSHA rule that is clearly within OSHA’s authority, will save lives and make workplaces safe.
The same activist court that refused to stay Texas’ law that permits bounty hunters to sue anyone who aids an abortion after 6 weeks of pregnancy has stayed an OSHA rule that is clearly within OSHA’s authority, will save lives and make workplaces safe.t.co/rHHArvPMeA
— David Michaels (@drdavidmichaels) November 6, 2021
The three judges on the panel were Edith Jones, Kurt Engelhardt and and Stuart Kyle Duncan. Jones was nominated to the Court of Appeals by Ronald Reagan, Engelhardt and Duncan were nominated by Donald Trump.
Four lawsuits were filed by groups of 26 states in the 8th Circuit, 11th Circuit, 6th Circuit and 5th Circuit over the past few days. Eleven states sued OSHA on Friday, arguing that the standard is “unconstitutional, unlawful, and unwise.” The lawsuit was filed in U.S. Court of Appeals for the Eighth Circuit by Missouri and was joined by Alaska, Arizona, Arkansas, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Iowa later joined as well.