Courts Change Course on Biden’s ‘Vaccine or Test’ Mandate

A federal appeals court on Friday lifted a stay on the Biden administration’s COVID-19 “vaccine or test” mandate for large employers, although the decision is seen as likely to be appealed to the Supreme Court.

“Based on the Occupational Safety and Health (OSH) Act’s language, structure, and Congressional approval, OSHA has long asserted its authority to protect workers against infectious diseases,” wrote Judge Jane Stranch of the Sixth Circuit Court of Appeals, in Cincinnati. “The language of the OSHA Act plainly authorizes OSHA to act on its charge ‘to assure safe and healthful working conditions for the nation’s work force and to preserve the nation’s human resources.'”

The OSHA action in question was an Emergency Temporary Standard (ETS) issued on Nov. 5 that required employers with 100 or more workers to mandate that their employees either get vaccinated against COVID-19 or be tested for it at least once a week.

A week after OSHA issued the ETS, the Fifth Circuit Court of Appeals granted a motion filed by employers and several Republican state attorneys general to stay the ETS, which had been due to take effect in 30 days. As a result, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

The right of the employers to sue over the “vaccine or test” mandate “is obvious — the mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” wrote Judge Kurt Engelhardt of the Fifth Circuit, in granting the stay.

“The mandate’s stated impetus — a purported ’emergency’ that the entire globe has now endured for nearly 2 years, and which OSHA itself spent nearly 2 months responding to — is unavailing … And its promulgation grossly exceeds OSHA’s statutory authority,” he added.

But the Sixth Circuit consolidated the Fifth Circuit case with several other similar cases, issuing a ruling that negated the Fifth Circuit decision and dissolved the stay. For one thing, “the Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is ‘required to make findings of exposure — or at least the presence of COVID-19 — in all covered workplaces’ [rather than just those with 100 or more employees] is simply wrong,” Stranch wrote, referring to one of the Fifth Circuit court’s reasons for issuing the stay.

“If that were true, no hazard could ever rise to the level of ‘grave danger’ because a risk cannot exist equally in every workplace and so the entire provision would be meaningless,” Stranch added.

Stranch also rejected the plaintiffs’ arguments that the ETS was both “overinclusive” and “underinclusive:”

“The argument that the ETS is overinclusive because it imposes requirements on some workers that are at lesser risk of death than others overlooks OSHA’s reasoning.”

“OSHA promulgated the ETS to prevent employees from transmitting the virus to other employees … OSHA found that unvaccinated workers in workplaces where they encountered other workers or customers faced a grave danger, and that vaccination or testing and masking were necessary to protect those workers from COVID-19. Those workers are in ‘a wide variety of work settings across all industries,’ thus counseling for the broad standard,” Stranch wrote.

On the other hand, asserting that the ETS is “underinclusive” because it hasn’t done enough to protect the workers also doesn’t fly, according to Stranch:

“OSHA explained that it chose a tailored threshold because those employers would be best positioned to actually effectuate the standard, and their employees are more at risk,” she wrote, because, for example, larger employers are more likely to have many employees working at the same location.

The Sixth Circuit’s decision was not the only one on Friday related to the Biden administration’s various vaccine mandates, however. CNN reported that another federal appeals court let stay a judge’s order blocking enforcement of a nationwide vaccine requirement for federal contractors; that, too, may end up at the Supreme Court.

Last Updated December 20, 2021