The US Occupational Safety and Health Administration announced Nov. 17 it has "suspended implementation and enforcement" of its COVID-19 emergency temporary standard issued earlier this month for employers of 100+ workers, including those in construction. following a Nov. 12 action by the U.S. appellate court in New Orleans affirming its earlier stay of the rule.
The agency said while it "remains confident in its authority to protect workers in emergencies," it took the action "pending future developments in the litigation." In a Nov. 18 joint statement, 60 medical associations urged employers to voluntarily implement the requirements, citing them as "reasonable and essential."
Before the standard was suspended, it required large employers to have testing or vaccination plans in place by Dec. 5 and to begin requiring vaccination or testing for workers by Jan. 4.
On Nov. 16, a US Justice Dept. lottery, meant to combine in one court all lawsuits against the standard filed in various federal courts, was won by the U.S. appellate court in Cincinnati, Ohio (6th circuit). It now will hear all appeals by the Biden Administration of the New Orleans court stay and the eventual case merits—unless the consolidated challenge is removed to another jurisdiction by a higher court.
A three-judge panel of the New Orleans court unanimously affirmed its week earlier stay of the OSHA standard that mandated vaccination or weekly testing and masking for roughly 80 million employees of large companies and other employers with 100 or more workers.
Writing for the majority, Judge Kurt Engelhardt, named to the court by former President Donald Trump, called the standard "staggeringly overbroad" and said "it is further ordered that OSHA take no steps to implement or enforce the mandate until further court order."
A total of 26 states, as well as employers and organizations, joined in lawsuits in the New Orleans court and in three other appellate courts against the standard, published Nov. 5 in the Federal Register, and against an earlier order by President Joe Biden applying to federal contractors. The Associated Builders and Contractors last week joined the suit in the Atlanta appellate court.
In a Nov. 12 response, the Justice Dept. termed the ruling "just the beginning of the process," noting that the administration will "continue to vigorously defend the standard."
The court said OSHA overstepped its statutory authority, created by the 1970 Occupational Safety and Health Act, to regulate workplace safety "by applying the rule to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself."
The ruling, further states that "the mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28-year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62-year-old prison janitor."
As part of its reasoning for setting the number of employees at 100 for the standard's vaccination or testing mandate and not creating separate rules for separate industries, the OSHA emergency standard states that the approach will allow the mandate to apply to two-thirds of all U.S. private-sector workers, reaching the largest facilities where the most deadly outbreaks of COVID-19 can occur.
OSHA also states that "this standard generally covers employers in all workplaces that are under [its] authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare."
In a concurring opinion, another Trump appointee, Judge Stuart Kyle Duncan wrote, "whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. Whether OSHA can do so does not."
Secretary of Labor Martin Walsh may now ask the full appellate court, rather than the three-judge panel, to hear the federal objection to the stay in the case, known as B.S.T. Holdings vs. OSHA, or choose to appeal its ruling on the stay to the Supreme Court.
In its Nov. 8 response, the administration had requested that the New Orleans court not decide on issuing an injunction on the standard until the appeals court that will hear the merged case is selected. In the Nov. 12 Justice Dept. statement, the government said it "looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review."
David Vladeck, a professor of law at Georgetown University, said there’s a "high probability" that the case will ultimately end up before the Supreme Court.