The 5th U.S. Circuit Court of Appeals has extended a stay for OSHA’s COVID-19 employer-based vaccination and emergency testing standard (ETS). The stay was sought by the National Retail Federation (NRF) and other industry associations, and will remain in place pending further judicial review of motions for a permanent injunction.
The stay was the result of a lawsuit filed by groups representing multiple industries, including the NRF, American Trucking Associations, FMI – The Food Industry Association, the International Warehouse Logistics Association, the Association for Convenience & Fuel Retailing, the National Association of Wholesaler-Distributors and the National Federation of Independent Business.
The court’s findings include that OSHA failed to demonstrate that all employees covered by the ETS are in fact exposed to COVID-19; that it remains unclear that COVID-19 poses the kind of “grave danger” that warrants the issuance of an ETS; and that ETS is not “necessary” to alleviate employees’ exposure to COVID-19, according to The National Law Review.
“The companies seeking a stay in this case contend that they would have been irreparably harmed in the absence of a stay, whether by financial impacts, the loss of suspended employees during this highly competitive labor market, compliance and monitoring costs associated with the mandate, the diversion of resources, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees,” said the NRF in a statement.
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The mandate would require that companies employing 100 or more people must ensure their workers are fully vaccinated against COVID-19 by Jan. 4, 2022, or that they test negative for the virus at least once a week. The NRF has called the requirements “burdensome,” particularly because of their potential impact during the holiday season.
The stay could be lifted if an appeal is made or another court overrides the current ruling.
