Government files emergency motion to dissolve stay of employer vaccine mandate

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November 23, 2021

Attorneys for OSHA and the US Department of Labor filed an emergency motion today to dissolve the stay preventing OSHA’s temporary emergency standard from taking effect. The standard would require employers with 100 or more employees to ensure that their employees are either vaccinated or receive weekly Covid tests.

The Fifth Circuit Court of Appeals issued the stay earlier this month, preventing the emergency temporary standard from taking effect while it goes through the court process. Several states and business had filed suit to stop prevent it.

In its opinion, the Fifth Circuit said the standard is “staggeringly overbroad.”

The case is now being heard by the Sixth Circuit Court of Appeals. Attorneys for the government argued in the filing today that the emergency temporary standard will save more than 6,500 lives and prevent more than 250,000 hospitalizations over the course of the next six months.

The Fifth Circuit’s “principal rationale was that OSHA allegedly lacked statutory authority to address the grave danger of Covid-19 in the workplace on the ground that Covid-19 is caused by a virus and also exists outside the workplace,” according to today’s filing. “That rationale has no basis in the statutory text. Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace.”

Even if the stay remains, government attorneys asked that a mask mandate remain in place for unvaccinated workers.

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