The Occupational Safety and Health Administration has suspended work on its vaccination/testing mandate for private businesses even as some Republicans in Congress vow to oppose funding to enforce the rule.

OSHA said it took the action because of the 5th U.S. Circuit Court of Appeals’ decision last week to stay the rule.

In an update posted on its website for the Emergency Temporary Standard, OSHA said that while it “remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

That litigation was consolidated Tuesday in the 6th U.S. Circuit Court of Appeals in Cincinnati, after more than three dozen petitions were filed in all 12 circuit courts of appeals.

By that point, however, the 5th Circuit already had issued its stay of the mandate after issuing a harsh rebuke of OSHA’s authority. 

The mandate, the court said, is not a “delicately handled scalpel,” but instead is a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the mandate purports to address.”

The ETS also “raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading” of the law, the court said. 

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Under the emergency rule announced Nov. 4, employees at companies of 100 or more would have to get vaccinated or undergo weekly testing for COVID-19. It was due to take full effect Jan. 4.

But the 5th Circuit ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." 

Meanwhile, there are efforts in the Senate to block the mandate through legislative action. Sen. Roger Marshall, R-Kan., said more than a dozen senators now support his pledge “to oppose ALL efforts to implement and enforce Joe Biden’s vaccine mandate, particularly on upcoming spending measures.”

In a letter to Majority Leader Chuck Schumer, Marshall and 12 other Republican senators said “if the vaccine mandate is allowed to be fully implemented, the result could be catastrophic. Many Americans who have decided to not comply with the vaccine mandate will not suddenly accept coercion. That is their God-given right.  Any attempt to blame this impending catastrophe on those choosing not to get vaccinated would be severely misplaced.”

They told Schumer they would “not support — and will use all means at our disposal to oppose — legislation that funds or in any way enables the enforcement of President Biden’s employer vaccine mandate. Nor will we vote for or support cloture on any continuing resolution in the absence of language protecting Americans from this action.”

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