The 5th U.S. Circuit Court of Appeals on Friday kept its earlier order in place that put a stop to the Biden administration’s COVID-19 vaccine mandate for businesses with 100 or more employees.
The mandate, put in place by the Occupational Safety and Health Administration (OSHA) and much maligned by the trucking industry as a threat to exacerbate the truck driver shortage and further disrupt the supply chain, also sits in other courts, where parties have sued to stop it. The dispute likely next heads to a randomly selected circuit court, where the cases will be consolidated for a predicted trip to the U.S. Supreme Court, which would have final say in the dispute.
For their part, the three judges of the conservative 5th U.S. Circuit wrote in their Nov. 12 ruling that OSHA “reasonably determined” under the Trump administration more than a year ago, in June 2020 at the height of the pandemic, that an emergency temporary standard (ETS) was not necessary. OSHA’s about-face earlier this month under a different administration raises “serious constitutional concern” and forces workers to choose between “their jobs and their jabs,” the panel of three judges of the 5th U.S. Circuit wrote in a scathing 22-page ruling.
OSHA argued earlier this week that the dispute was literally about life and death and that the workplace rules should be allowed to proceed. Halting the ETS “would likely cost dozens or even hundreds of lives per day. Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds," OSHA asserted in a counterclaim before the 5th U.S. Circuit.
A federal appeals court on Friday reaffirmed its earlier decision to freeze the Biden administration's vaccine mandate. https://t.co/g0nu3jiuNl
— CNN (@CNN) November 13, 2021
"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 three judges wrote.
For the U.S. Justice Department, which is representing OSHA, the matter is simply about protecting public health. For the Biden administration, it’s about ensuring as many people as possible receive the protection of the COVID-19 vaccines. All other concerns, they argue, are secondary.
Under the disputed OSHA rulemaking, if individuals choose not to be vaccinated, they must be tested for COVID-19 weekly or within seven days prior to returning to work, with employers not mandated to pay for the testing. By Jan. 4, employers must ensure employees are vaccinated or receive a weekly negative test.
According to OSHA, exempt employees include:
- Those who don’t report to workplaces where others are present.
- Those who work from home.
- Those who work exclusively outdoors.
Employers also must keep records for each employee, including vaccination status and acceptable proof of vaccination. Employers are responsible for providing paid time off (up to four hours) and subsequent sick days after the vaccination, as the shot may cause common side effects such as fatigue, headaches, muscle pain, chills, fever, and nausea.
This FleetOwner story is still developing.
