OSHA Suspends Enforcement of Vaccine Mandate as Case Heads to 6th Circuit  

Five days after the U.S. Court of Appeals for the Fifth Circuit issued a stay of the Biden administration’s vaccine mandate, the Occupational Safety and Health Administration (OSHA) has issued a statement complying with the order.

This decision comes as yet another temporary breath of relief for thousands of American workers facing a stark decision – get vaxxed or get lost.  

The OSHA mandate would impact 84 million workers and required companies with 100 or more employees to enforce policies requiring employees to vaccinate against Covid-19 or submit to weekly testing and wear masks while on the job.

The mandate was passed under OSHA’s Emergency Temporary Standard (ETS) authority which allows OHSA to take rapid steps when employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” See 29 U.S.C. § 655(c)(1).

However, the Fifth Circuit found that OSHA’s actions exceeded the authority granted under the statute and danced on the cusp of unconstitutionality. (For a full breakdown of the Court’s reasoning – click here.)  

Under the Fifth Circuit’s ruling, OSHA has been ordered to “take no steps to implement or enforce” the vaccine mandate “until further court order.” And while Circuit decisions are often restrained to the states within the circuit, this decision had a national impact.

OHSA has now responded to the order. Its official website now reads:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA 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.

The OSHA Lottery…

OSHA’s compliant behavior may be motivated by the fact that the 6th U.S. Circuit Court of Appeals was chosen on Tuesday by a ping-pong ball lottery to hear the consolidated complaints filed against the mandate.

While this setup may strike some as unusual, it comes as a direct result of the U.S. Code. Under 28 U.S.C. §2111(a)(3), when an agency such as OSHA receives two or more petitions for review of an order, it must notify a judicial panel on multidistrict litigation. The panel then creates a lottery of all the appeals courts involved, one of which will be chosen to review a consolidated complaint of the issue.  

This Tuesday, the DC-based Judicial Panel on Multidistrict Litigation placed a dozen ping pong balls into a wooden drum and drew out the winning ball – the conservative 6th Circuit.

The 6th Circuit covers Tennessee, Kentucky, Ohio, and Michigan, and it is a solidly conservative court comprised of 11 Republican-appointed judges and five Democratic-appointed judges. While their ultimate decision is yet to be seen, it gives hope to those in opposition to sweeping government vaccine mandates and was likely the catalyst behind OHSA’s response.

Despite this setback, the Biden administration continues to push for compliance.

US President Joe Biden delivers remarks after touring the Clayco construction site in Elk Grove Village, Illinois, on October 7, 2021. – Biden traveled to Chicago to promote the importance of Covid-19 vaccine requirements for all workers. (Photo by Nicholas Kamm / AFP)

On Monday, The U.S. Chamber of Commerce recommended that businesses implement the mandate, despite the Fifth Circuit’s ruling, and on Friday, Press Secretary Jen Psaki told reporters that the mandate would encourage workers to return to their workplaces by creating safer environments.  

“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters during a briefing. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”

With both sides unwilling the budge, and with the liberty of millions of American’s at stake, the case’s most likely outcome is a trip to the Supreme Court. However, there is now some optimism among conservative pundits that a solid opinion grounded in the same logic utilized by the 5th Circuit will prove hard to overturn.

Post by CJ Fisher

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