Furthering the conversation as to current status:

The 5th Circuit Court of Appeals issued its Opinion last evening to STAY the implementation of the OSHA-enforced ETS mandate for employers (of 100+) to test unvax’d workers. The Stay is pending the Constitutional Challenge. The 5th Circuit projects the challenge will ultimately successfully strike down the ETS. Among the reasons the Court articulately sets forth are: no federal authority to mandate, lack of power for OHSA to regulate, overbreadth of the ETS without showing that the workplaces of employers its seeks to regulate are at heightened risk, and the underinclusive nature of the ETS which does not cover 1/3 of the workforce nor does it purport to provide protective measures for those who may spread COVID-19 in the workplace in between the weekly testing measures. And the court says irreparable harm to workers, employers and states, but none to OSHA. The Order is attached.

What is the effect on those of us not in the 5th Circuit? Not sure if there is sufficient reason for injunction to be appealed now for SCOTUS to get involved, until the merits of the constitutional challenge are ruled upon.

In the meantime, in NC anyway, the NCDOL has indicated it will NOT be enforcing the ETS at this time.

Nothing here involves the CMS ETS as to health care mandate.

Furthering the conversation as to current ETS status:

The 5th Circuit Court of Appeals issued its Opinion last evening to STAY the implementation of the OSHA-enforced ETS mandate for employers (of 100+) to test unvax’d workers. The Stay is pending the Constitutional Challenge. The 5th Circuit projects the challenge will ultimately successfully strike down the ETS. Among the reasons the Court articulately sets forth are: no federal authority to mandate, lack of power for OHSA to regulate, overbreadth of the ETS without showing that the workplaces of employers its seeks to regulate are at heightened risk, and the underinclusive nature of the ETS which does not cover 1/3 of the workforce nor does it purport to provide protective measures for those who may spread COVID-19 in the workplace in between the weekly testing measures. And the court says irreparable harm to workers, employers and states, but none to OSHA. The Order is here: 21-60845-CV0.pdf (uscourts.gov)https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf

What is the effect on those of us not in the 5th Circuit? Not sure if there is sufficient reason for injunction to be appealed now for SCOTUS to get involved, until the merits of the constitutional challenge are ruled upon.

In the meantime, in NC anyway, the NCDOL has indicated it will NOT be enforcing the ETS at this time.

Nothing here involves the CMS ETS as to health care mandate.

And now OSHA has backed down for now:

www.osha.gov/coronavirus/ets2https://www.osha.gov/coronavirus/ets2

Not long after the Fifth Circuit's opinion on Friday (staying enforcement) was released, OSHA issued the following statement:

"On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing [ETS]. The court ordered that OSHA 'take no steps to implement or enforce' the ETS 'until further court order.' While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

On Nov 13, 2021, at 9:26 AM, Martha Thompson Martha.Thompson@clevelandcountync.gov wrote:


Furthering the conversation as to current status:

The 5th Circuit Court of Appeals issued its Opinion last evening to STAY the implementation of the OSHA-enforced ETS mandate for employers (of 100+) to test unvax’d workers. The Stay is pending the Constitutional Challenge. The 5th Circuit projects the challenge will ultimately successfully strike down the ETS. Among the reasons the Court articulately sets forth are: no federal authority to mandate, lack of power for OHSA to regulate, overbreadth of the ETS without showing that the workplaces of employers its seeks to regulate are at heightened risk, and the underinclusive nature of the ETS which does not cover 1/3 of the workforce nor does it purport to provide protective measures for those who may spread COVID-19 in the workplace in between the weekly testing measures. And the court says irreparable harm to workers, employers and states, but none to OSHA. The Order is attached.

What is the effect on those of us not in the 5th Circuit? Not sure if there is sufficient reason for injunction to be appealed now for SCOTUS to get involved, until the merits of the constitutional challenge are ruled upon.

In the meantime, in NC anyway, the NCDOL has indicated it will NOT be enforcing the ETS at this time.

Nothing here involves the CMS ETS as to health care mandate.

<Order upholding injunction 21-60845-CV0 11.12.21.pdf>

The Sixth Circuit was selected through the lottery system  as hearing location for all federal suits. They have the ability to adopt, dismiss or modify the injunction from the 5th Circuit and make it applicable for  all jurisdictions, as I understand.  More fun to come!

You have likely been following but here is the Order

From: Martha Thompson Martha.Thompson@clevelandcountync.gov
Sent: Monday, November 15, 2021 7:32 AM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] Re: ETS - OSHA employer mandate UPDATE

And now OSHA has backed down for now:

www.osha.gov/coronavirus/ets2https://www.osha.gov/coronavirus/ets2

Not long after the Fifth Circuit's opinion on Friday (staying enforcement) was released, OSHA issued the following statement:

"On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing [ETS]. The court ordered that OSHA 'take no steps to implement or enforce' the ETS 'until further court order.' While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

On Nov 13, 2021, at 9:26 AM, Martha Thompson <Martha.Thompson@clevelandcountync.govmailto:Martha.Thompson@clevelandcountync.gov> wrote:

Furthering the conversation as to current status:

The 5th Circuit Court of Appeals issued its Opinion last evening to STAY the implementation of the OSHA-enforced ETS mandate for employers (of 100+) to test unvax’d workers. The Stay is pending the Constitutional Challenge. The 5th Circuit projects the challenge will ultimately successfully strike down the ETS. Among the reasons the Court articulately sets forth are: no federal authority to mandate, lack of power for OHSA to regulate, overbreadth of the ETS without showing that the workplaces of employers its seeks to regulate are at heightened risk, and the underinclusive nature of the ETS which does not cover 1/3 of the workforce nor does it purport to provide protective measures for those who may spread COVID-19 in the workplace in between the weekly testing measures. And the court says irreparable harm to workers, employers and states, but none to OSHA. The Order is attached.

What is the effect on those of us not in the 5th Circuit? Not sure if there is sufficient reason for injunction to be appealed now for SCOTUS to get involved, until the merits of the constitutional challenge are ruled upon.

In the meantime, in NC anyway, the NCDOL has indicated it will NOT be enforcing the ETS at this time.

Nothing here involves the CMS ETS as to health care mandate.

<Order upholding injunction 21-60845-CV0 11.12.21.pdf>

The Sixth Circuit was selected through the lottery system  as hearing location for all federal suits. They have the ability to adopt, dismiss or modify the injunction from the 5th Circuit and make it applicable for  all jurisdictions, as I understand.  More fun to come!

You have likely been following but here is the Order