On December 17, the Sixth Circuit issued a disappointing reversal of the Fifth Circuit’s stay on the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that mandates vaccine requirements for employers with one hundred or more employees.
The decision came from a split panel of two to one. Judge Jane Stranch, an Obama appointee delivered the opinion. She was joined by Judge Julia Gibbons, a Bush appointee. Judge Joan Larsen, a Trump appointee, dissented. Tomorrow that decision goes to the Supreme Court. Here, I provide a layout of the main points.
The Opinion…
The 37-page Opinion begins by focusing on the “unprecedented” nature of Covid-19 and suggests that businesses need and even want “guidance,” that OSHA very simply provided.
Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there.
In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402 (“Opinion”), Page 4
After briefly reviewing the history and purview of OSHA, the Court provided a Factual Background in which the majority appeared to frame the issue as overblown. After all, the pandemic is bad, and OSHA published a 153-page preamble to the ETS. (Honestly, I’m not sure why the page count is supposed to be of comfort. If one bothers to read it, it threatens to create even more draconian future restrictions that will cover even more citizens.)
The majority noted that “[t]he ETS does not require anyone to be vaccinated,” but rather allows employers to decide what is best. This odd attempt to pass the buck is somewhat ruined however when the Court then admits the following points about the ETS requirements:
- Unvaccinated employees must wear a mask on the job and take weekly tests
- In the alternative, employees can work from home (if possible)
- Workers who work exclusively outdoors are also exempt
- Employers must confirm and record employees’ vaccination status
- Employers who fail to comply will be fined per violation
- $13,653 for an accidental violation
- $136,532 for a willful violation
The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done.
Opinion, page 7.
Let’s Break It Down…
The Court’s relaxed approach to the mandate deserves some scrutiny. In sum, the ETS allows American citizens who are unwilling to take part in a large scale medical experiment to:
- Find a job outdoors or online
- Take, at the very least, weekly invasive tests, which have the potential to become prohibitively costly
- That’s right, the 153-pages the judges reference so warmly suggests more frequent testing may be required and allowable.
- It also allows employers to place that cost at employee’s feet
- Employee’s medical status will be recorded & reported to Big Brother
- So much for HIPPA
- Employees who manage to keep their job must wear a mask like a scarlet letter
- And let’s not mention when in history a piece of cloth has been used to designate a group, because apparently, knowledge of history offends certain political interests
Of course, reluctant employees could always give in and get “vaccinated,” but as the OSHA’s 153-page preamble made clear what counts as “vaccinated” is subject to change. In short, compliance may require one booster after another. Recent reports have suggested that a booster may be necessary every ten weeks!
Meanwhile, employers who still value their employees’ freedom to make voluntary medical decisions are required to:
- Monitor their employees and keep databases
- This rule effectively forces employers to serve as an extension of the government
- If they refuse to comply, they can be hit with $136,532 fines
- Notably, that’s per violation
- And in case you were worried that the fines are too low, don’t be, per the 153-page preamble, they could potentially be adjusted higher
- In fact, the Build Back Better Act would increase the amount to $700,000
The majority’s flippant attitude towards citizens’ potential loss of their God-given and Constitutional rights to bodily autonomy, Nuremberg Code violations, and the potentially devastating and very real economic impact of the ETS on resistors can perhaps only be explained by the fact that most of the judiciary is exempt from Covid-19 vaccination policies.
The Court’s Analysis of the Four Traditional Stay Factors
After its flippant approach to the ETS, the Court provided a deep dive analysis into the four traditional stay factors that their sister court had found to weigh in favor of the applicants:
- Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
- Whether the applicant will be irreparably injured absent a stay;
- Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- Where the public interest lies.
Unlike the Fifth Circuit, the Sixth Circuit found that all four factors weighed in OSHA’s favor.
1. The Court did not believe petitioners can win on the merits because it found that the ETS is within OSHA’s authority.
The Court notes that OSHA has “broad authority” to protect the workplace “by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.” See 29 U.S.C.§ 651(b)(5).
In general, standards must be “reasonably necessary or appropriate to provide safe or healthful employment…” To issue an ETS under 29 U.S.C. § 655(c)(1):
- Employees must be exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and;
- An emergency standard is necessary to protect employees from such danger.
A. The Sixth Circuit found the ETS fell within OSHA’s authority.
Unlike the Fifth Circuit, the Sixth found that the ETS fell squarely within OSHA’s authority after taking a “holistic view of the [statutory] language.” They used Meriam-Webster to show that an “agent” could include a virus and pointed to OSH Act Section 20’s religious exemptions for immunizations to prove that the Act contemplated immunization regimes.
“Based on the OSH Act’s language, structure, and Congressional approval, OSHA has long asserted its authority to protect workers against infectious diseases”
Opinion, page 12
The majority also found that Covid-19 equated to an emergency and a “grave danger” as evidenced by OSHA’s 153-page preamble. The Court accepted OSHA’s explanation that the ETS was “necessary,” by defining necessity very loosely as any measure that it “is necessary to alleviate a grave risk…” Of course, such a definition would make almost any rule OSHA proposes regarding Covid-19 or any other matter “necessary.”
B. The Court equated OSHA’s ability to regulate dangers found in and out of the workplace as the ability to regulate employees in and out of the workplace.
The Court went on to discuss past projects in which OSHA attempted to curb workplace dangers – in particular, the majority focused on its battle against blood-borne pathogens. Because these agents can be found outside the workplace, the Court concludes that OSHA has the authority to “regulate infectious diseases that are not unique to the workplace” and gives “deference … to OSHA’s fact-finding expertise.”
Although not cemented by the majority with clarity, this point goes to a key issue – OSHA has authority to regulate the workplace, but workers cannot put on the vaccine at work and take it off while at home. It will permeate their life forever. Apparently, by suggesting that OSHA may tackle dangers found at home and in the workplace, the Court made the illogical leap that therefore it could regulate workers while at home and in the workplace.
C. The Court utilized unsound Covid-19 statistics provided by OSHA.
Working hard to justify itself, the Court spouted several Covid-19 statistics found in the 153-page OSHA preamble. Among the claims were two scientific unsound assertions: (1) that asymptomatic spread is a prevalent issue; and (2) that vaccinated individuals are less likely to spread the virus. Both assertions have been cast into doubt by numerous ongoing studies around the world, and yet the Court used these “facts” as key justifications for the ETS.
D. The Court found that a 100-employee cut-off was not arbitrary.
While the Fifth Circuit found the 100-employee cut off an arbitrary standard that was both under- and over-inclusive, the Sixth Circuit found it justified. Basically, the argument boiled down to because “OHSA said so,” and OSHA has experts, so they would know. Never mind the aforementioned scientific errors or OSHA’s own admission that studies of the virus are ongoing and facts are still loose. In any case, the Court reasoned that OSHA can always simply “revise, refine, and broaden (or narrow) …” the regulation later. Which is, of course, a great help and comfort to those employees that will be impacted now.
E. The Court found that the ETS was economically feasible.
The Court noted that OSHA also conducted an economic analysis that suggested the cost of the ETS would only amount to 0.02 percent of the revenue of the average covered employer or about $11,298 per affected entity. Wow – that’s great news, right!
Apparently, that cost does not reflect the emotional toll on employees who will be forced to undergo numerous unwanted medical procedures. It certainly provides no solution to those individuals who will experience adverse effects with no current ability for recourse.
The analysis also fails to calculate the cost of testing for unvaccinated employees (some of whom, it should be noted, will remain unvaccinated due to medical issues.) It also does not account for how often a clerical error might result in a small $13,652 dollar fine (potentially $70,000 under Build Back Better). But hey, there is nothing like putting the livelihood and freedom of nearly every American into the hands of bureaucratic experts.
F. The Court found that the ETS does not violate the Commerce Clause because it regulates Employers, not Individuals.
The Sixth Circuit denied the notion that the ETS exceeded the bounds of the Commerce Clause. They found it was not a regulation of noneconomic activity (citizen’s personal medical decisions), rather it was a regulation on “employers with more than 100 employees, not individuals.” And because the employers are necessarily engaged in commerce, voila, it’s fine.
Now, to be fair to the Sixth Circuit, courts have been playing loose and fast with the Commerce Clause for decades, slowly eroding our freedom with every ridiculous decision rendered. In fact, in legal circles, the Commerce Clause is known as magic pixie dust that can make just about any bullshit Congress produces “constitutional.”
That said, this is ridiculous.
Earlier in the Opinion, the judges claimed that it was okay to force people to get vaccinated because it was the employers doing it, not the government. Now, the Court is forced to admit that the employers are only doing so because the government is forcing them to. Because, if they don’t admit that, then they can’t try to shoehorn the ETS under the commerce clause. But, the very admission proves that the federal government is turning employers into strong arms because it has been unable to find a loophole to force the citizens to get vaccinated. Obviously, you could run on this illogical hamster wheel all day, and it will never be less ridiculous. And the Court’s attempts to compare forced vaccinations to minimum wage laws are frankly, pathetic.
G. The Court also rejected an argument it framed as “improper delegation”.
The Fifth Circuit asserted that the ETS overstepped OSHA’s statutory authority. Because the majority found the ETS to be within OSHA’s authority, it transformed this argument into an issue of delegation. In short, it found Congress could and did delegate the authority.
H. The Court found the remaining three factors weighed in favor of lifting the Fifth Circuit’s stay.
Because the majority determined the applicant’s arguments lacked merit, they also found that they would not be irreparably injured absent a stay. Furthermore, they found that it was in the interest of OSHA and the public to curtail the march of the virus via the ETS.
My Conclusion
I do not feel I exaggerate when I say this Opinion was a travesty. Perhaps it is true that freedom dies with a whimper and not a bang. I can only hope that the Supreme Court will honor its duty to uphold the rights of the citizen. In the meantime, we must continue to peacefully resist oppression and tyranny in all its ugly forms.
Post by: CJ Fisher
Time Surf 
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