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In addition, the Circuit said, the mandate failed to consider the “economic consequences to the regulated industry,” quoting its own 1984 decision on OSHA’s ETS powers, in which it stayed OSHA’s attempt via ETS authority to regulate asbestos, determining that it was “invalid.”īefore the vaccination mandate, OSHA had not used its ETS power since losing that case, Asbestos Info.

At the same time, the mandate was also “underinclusive,” the Circuit ruled, because it fails to protect employees of businesses that employ fewer than 100 employees, which “belies the premise that any of this is truly an emergency.” The Fifth Circuit answered that the mandate was “staggeringly overbroad” in that it failed to include, “the most salient fact of all,” that Covid is “more dangerous to some employees than to other employees” (emphasis in original), an example of the latter being employees who work outdoors. The Biden administration argued that its basic statutory authority together with its special emergency authority allowed it to issue an ETS because Covid had created a “grave danger” to the country by exposing workers to “toxic or physically harmful. OSHA, as well as all other cases nationwide challenging OSHA’s mandate. Now, in keeping with rules governing multi-circuit litigation, the Sixth Circuit Court of Appeals will take over the Fifth Circuit’s case, BST Holdings, LLC et al. for a multitude of reasons.”Īfter the loss at the Fifth Circuit, and in light of similar challenges in other federal courts, the Biden administration has suspended the vaccination mandate. The Circuit considered the normal rules of jurisprudence concerning stays and injunctions and issued a stay, holding that the mandate was not “likely to succeed. They asked that the mandate be stayed from going into effect pending the outcome of their suit, which seeks a permanent injunction. Individual plaintiffs, employers, and the states of Mississippi, Louisiana, Texas, South Carolina, and Utah filed suit against the OSHA mandate. Also, as the Circuit pointed out, courts overturned five of those past OSHA ETS initiatives. It has never done so to require national immunizations. In its 50-year history, OSHA has used its ETS emergency powers only on ten occasions, for example, concerning asbestos and benzene. On September 9, President Biden had imposed a similar vaccination requirement on all federal employees. The ETS vaccination mandate OSHA promulgated on November 5 required all private businesses of 100 or more employees in the country to have their workforces vaccinated against Covid or mask and have weekly Covid tests.