5th Circuit Orders OSHA Not To Implement Or Enforce Its Vaccination Mandate

Last night, the United States Court of Appeals for the Fifth Circuit (the “5^th Circuit”) granted the petitioners' motion for a stay pending judicial review of OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) for employers with 100 or more employees and ordered OSHA to take no steps to implement or enforce the ETS until further court order. In reaffirming its initial stay, the 5^th Circuit cited a multitude of reasons why the petitioners' challenges to the ETS are likely to succeed on the merits, including finding that the ETS:

1. grossly exceeds OSHA's statutory authority,
2. is overbroad because it applies to two out of three private sector employers without any recognition that workplaces are diverse, and some employees are less vulnerable than others,