Hey Compliance Warriors!
On Saturday morning, a Federal Appeals Court reaffirmed the stay on the OSHA ETS adding that it “grossly exceeds OSHA’s statutory authority.”
You can read the 22-page opinion here https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf
So, what next?
Tomorrow, Tuesday, November 16th, 2021, a lottery is slated to be held that will choose a court to hear the arguments and decide whether the ETS lives or dies. The feeling is that the ETS will have a very tough time surviving and may die altogether with the lottery court.
Saturday’s decision was harsh and very much to the point. Here is a bit of the commentary:
On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.
In the next round of “spin the ETS”, the lottery court may decide the ETS is unconstitutional. If this happens, an appeal may go to SCOTUS for a final hearing.
So, for now, keep your eyes and ears open and stay tuned! Your Breaking News on the subject will be right here at HelpDeskforHR.com
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