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On the Alert

5th Circuit to OSHA: Do not implement
or enforce the vaccine mandate
until further court order.

BST Holdings v. OSHA (5th Cir 11/12/2021)
Sent to Custom Alerts™ subscribers on 11/12/2021

The 5th Circuit issued a stay pending adequate judicial review of OSHA's emergency temporary standard (ETS) (a/k/a/ Mandate) that all employees at private companies with more than 100 workers must get COVID-19 vaccinations, or be tested weekly. This reaffirms the court's temporary stay issued on November 6.

The court ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."

Using extraordinarily blistering language, the court made four main points:

(1) "the petitioners' challenges to the Mandate show a great likelihood of success on the merits"

"The Occupational Safety and Health Act … was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways."

"The Mandate's … promulgation grossly exceeds OSHA's statutory authority."

 The Mandate is "staggeringly overbroad," and "is a one-size-fits-all sledgehammer."

 "The Administration’s prior statements … belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS."

 "The Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity."

(2) "a denial of the petitioners' proposed stay would do them irreparable harm."

(3) "a stay will do OSHA no harm whatsoever."

(4) "a stay is firmly in the public interest."

NOTE: Similar cases are pending in several other Circuit Courts, and we expect them all to be transferred to a single Circuit Court – to be determined by a lottery on November 16.

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