Appeals Court Stays Enforcement of OSHA COVID-19 Rule

On Saturday, November 6, 2021, the United States Court of Appeals for the Fifth Circuit in New Orleans stayed implementation of a new Temporary Emergency Standard by the U.S. Department of Labor, Occupational Health and Safety Administration, (OSHA) that requires workers at U.S. companies with at least 100 employees to be vaccinated or be tested weekly and wear face coverings by January 4, 2022. OSHA issued the temporary rule based on the agency’s determination that a grave danger exists due to COVID-19, and that immediate action is needed to protect employees from that danger.

The federal lawsuit was filed a day after the rule’s effective date and publication in the Federal Register. The Petition for Review was filed by Texas, Louisiana, Mississippi, South Carolina and Utah, along with trade groups, private companies and schools and alleges that the rule exceeds OSHA’s regulatory authority.

A three-person panel of the appeals court held that because the Petitioners have given cause to believe there are “grave statutory and constitutional issues,” the rule should be stayed pending further review. As part of the court’s expedited review, the Government must respond to the Petition for Review by Monday, November 8, 2021, and the Petitioners must reply by Tuesday, November 9, 2021.

Attorneys General in 26 states have filed lawsuits seeking to block implementation of the rule. On Friday, November 5, 2021, Attorneys General from Florida, Alabama, and Georgia filed a lawsuit with private plaintiffs in the U.S. Court of Appeals for the Eleventh Circuit, alleging that the rule does not comply with the emergency temporary standard and conflicts with the U.S. Constitution and Religious Freedom Restoration Act.