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Appeals Court Halts OSHA Vaccine Mandate, for Now

Nov. 15, 2021
Citing OSHA 'overreach' and questioning 'emergency' status, federal court in New Orleans reaffirms stay for plaintiffs, representing multiple states, businesses. DOJ pushes back.

Compiled from news reports...

On Nov. 12, the same federal appeals court that had issued a temporary stay early last week on the new "Emergency Temporary Standard" (ETS) from the U.S. Occupational Safety and Heath Administration (OSHA) reaffirmed its initial ruling.

Pending appeal, which the Biden Adminstration is already pursuing, the move essentially blocks enforcement of the ETS, which had mandated that businesses with 100 or more employees must require their workers to get vaccinated against the Coronavirus or submit to weekly testing, starting in January 2022. OSHA announced implementation of the ETS on Nov. 5, which drew a legal challenge within 24 hours from the attorneys general of five states, joined by a handful of businesses and religious organizations located there.

Beta Engineering of Pineville LA was the only AEC firm listed among the plaintiffs. But Associated General Contractors of America (AGC) and Associated Builders and Contractors (ABC), two rival national groups, last week had voiced support for the legal challenge. For its part, ABC has filed a similar complaint in the 11th Circuit Federal Appeals Court in Atlanta.

Ironically, both groups have urged their members to get the Coronavirus vaccine. AGC even produced and posted a public service announcement on the subject earlier this fall with the Centers for Disease Control. Nevertheless, both AGC and ABC have bristled at the vaccine mandate, characterizing it as federal coercion on the part of OSHA.

After conducting an "expedited review" in six days, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued a colorful, 22-page ruling on Friday, slamming the mandate. Appointed to the court in 2018, Judge Kurt D. Engelhardt wrote:

Rather than a delicately handled scalpel, the Mandate 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...

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 response, the U.S. Dept. of Justice (DOJ) took particular issue with the court's seeming dismissal of the term "emergency", noting that the pandemic remains an ongoing public health emergency that has now claimed the lives of more than 760.000 Americans, and more than 47 million cases have so far been reported in the U.S., according to the Johns Hopkins University Coronavirus Resource Center.

“Today’s decision is just the beginning of the process for review of this important OSHA standard,” said DOJ spokeswoman Dena Iverson in a statement. “The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”

Once those cases are consolidated from other districts, the issue will undoubtedly be decided by the U.S. Supreme Court. How soon that can happen, though, is yet to be determined. But as the pandemic persists into yet another Covid winter, expect the DOJ to petition the high court for a "expedited" resolution as soon as possible.