PERMANENT Stay on OSHA's EMS: Ruling Puts Public Health in its Proper Place

Ruling puts the brakes on, and reason and science prevails... until hearing begins and stay is released, or concludes and final ruling is issued

In a stunning victory for the American economy, informed consent and personal autonomy, and for workers and employers who know the OSHA rule is going to cost them good employees, the Fifth Circuit Court of Appeal today put the nail in the coffin of any further bids by OSHA to reverse the restraints on OSHA.

They also put the surging public health authorities in their place.

The court gave excellent reasons, including

(1) OSHA has no jurisdiction when a virus that is widely circulating both within and outside the workplace to claim (special) risk of grave harm in the workplace;

(2) OSHA’s unilateral rule has not been demonstrated to apply to all workplaces;

(3) Previous statements from the White House, OSHA and specifically the statement that no mandate for vaccination will be forthcoming undermines OSHA’s new-found position on grave danger posed by COVID-19.

(4) OSHA’s Emergency Temporary Standard (ETS) is at once too broad, and does not account for differences among workplaces that differ in the degree of risk of exposure, and too narrow because if a grave danger does exist, the ETS fails to protect workers in companies with fewer than 100 workers.

(5) OSHA failed to demonstrate that the benefit of protection from harm would outweigh the consequences to employees.

(6) The Commerce Clause and Separation of Powers in the US Constitution are violated by the ETS.

(7) Because the ETS would force the petitioners to choose between employment and getting the vaccine, the ETS violates the liberty interests of employees in the US.

(8) The Fifth Circuit also found that employers can suffer irreparable harm from the costs associated with implementing the ETS, from loss of workers, and from penalties for non-compliance.

The Fifth Circuit recognized that even the “specter” of the ETS has “contributed to untold economic upheaval in recent months”, ranging from “economic uncertainty to workplace strife”.

(9) The ETS steps on the toes of the States, who have the constitutionally protected police power - and this is important - OVER PUBLIC HEALTH AUTHORITY - from overreach.

(10) There is no harm to OSHA from the stay, contrary to what OSHA tried to argue.

I love this Fifth Circuit panel. They wrote that public interest is, in fact, served by the stay by preserving the constitutional structure and “the liberty of individuals to make intensely personal decisions according to their own convictions - even, or perhaps particularly, when those decisions frustrate government officials”.

OSHA was ordered by the panel to do nothing to enforce their rule pending a final court decision.

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