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Capitol Correspondence - 11.09.21

Fifth Circuit Court of Appeals Grants Stay Against OSHA COVID-19 Vaccine Rule; Other States’ Lawsuits Pending

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On Saturday, the U.S. Court of Appeals for the Fifth Circuit granted a stay in enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) rule mandating COVID-19 vaccination or testing for employers with 100 or more employees. The lawsuit was led by Texas and joined by Louisiana, Mississippi, Utah, and South Carolina. The Fifth Circuit Court of Appeals found that there was sufficient “cause to believe there are grave statutory and constitutional issues” with the OSHA rule and asked the Biden administration to respond to the motion for a permanent injunction by Monday at 5 pm.

Aside from the five states that brought litigation in the Fifth Circuit, states with Republican attorneys general have challenged the OSHA ETS in three additional circuits: three states led by Florida filed in the Eleventh Circuit, seven states led by Kentucky filed in the Sixth Circuit, and 11 states led by Missouri filed in the Eighth Circuit. The cases will next be consolidated into one lawsuit and the court that will have jurisdiction over the case will be chosen by lottery. The court chosen in that lottery can lift the stay granted by the Fifth Circuit.