Washington — Public Citizen has filed a friend-of-the-court brief with the 5th U.S. Circuit Court docket of Appeals on behalf of three former OSHA directors, providing assist for the company’s emergency momentary customary on COVID-19 vaccination, testing and masking.
Among the former agency heads is Gerard Scannell, who filled the position during the George H.W. Bush administration (1989-1992) and is a former president and CEO of the National Safety Council. The others are Charles Jeffress (1997-2001) and OSHA’s longest-serving assistant secretary, David Michaels (2009-2017).
The implementation and enforcement of the ETS was halted by the New Orleans-based 5th Circuit Court of Appeals in a decision handed down Nov. 12. In a 22-page opinion, a three-judge panel writes that OSHA’s decision to incorporate only workplaces with 100 or extra workers in the ETS “belies the premise that any of this is truly an emergency.”
Amongst different issues, the judges ruled that the promulgation of the ETS “grossly exceeds OSHA’s statutory authority.” They contend that the Occupational Safety and Health Act of 1970 wasn’t meant for OSHA “to make sweeping pronouncements on matters of public health” and that SARS-CoV-2 – the virus that causes COVID-19 – is an airborne virus that’s “widely present in society (and thus not particular to any workplace).”
The 6th Circuit, based in Cincinnati, will take into account a consolidated challenge to the ETS in the near future. The court was chosen to decide on the fate of the ETS via a lottery, which was performed by the Judicial Panel on Multidistrict Litigation on Nov. 16 after 27 petitions for review on the ETS had been filed in 12 appeals courts.
In a Nov. 30 press release, watchdog group Public Citizen contends the 5th Circuit decision is “contrary to the plain language” of the OSH Act, which “gives OSHA broad authority to prevent workplace illnesses and diseases caused by exposure to ‘harmful physical agents,’ including viruses.”
The release continues: “OSHA consistently has interpreted the act to authorize protections against infectious agents, including bloodborne pathogens, airborne viruses and bacteria – such as the tuberculosis bacillus – as well as other hazardous conditions that workers encounter both at work and elsewhere.”
In a Nov. 30 tweet, Michaels mentioned he was “proud to be among former OSHA directors filing a bipartisan brief explaining how [OSHA] works – and what the 5th Circuit got wrong.”
OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus workers 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives staff the choice to get vaccinated or undergo weekly COVID-19 testing.
Lined workers had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and put on a face covering while indoors or in a vehicle “with another person for work purposes.”
On its website, OSHA states that although it remains “confident in its authority to protect workers in emergencies,” it has suspended actions related to the implementation and enforcement of the ETS “pending future developments in the litigation.”