The Biden Administration Is Asking an Appeals Court to Lift the Order Blocking OSHA’s Vaccine Mandate

Today the Biden administration requested that a federal appels court lift the stop on the implementation of its mandate for vaccines to private employers. The Biden administration warned that delays in enforcing this rule would “possibly cost many lives per day.” The government filed an emergency motion with the U.S. Court of Appeals, 6th Circuit. It argued that there was no merit in the statutory and constitutional objections to the mandate. This requires companies employing 100 people or more to require their employees to get vaccinated for COVID-19.

OSHA published the “emergency temporarily standard” (ETS), on November 5. It was temporarily blocked by the U.S. Court of Appeals, 5th Circuit on November 5, after it raised serious statutory and constitutional questions. The 5th Circuit extended the stay of its decision on November 12 and said that the ETS was fatally flawed because it exceeded OSHA’s statutory authority. A variety of challenges to mandate were brought together last week. The 5th Circuit’s cases were also consolidated. They were then assigned to OSHA by lottery to 6th Circuit. This order is being challenged by the government.

The ETS option, which OSHA rarely uses, allows the agency to circumvent the usual rule making process, which typically takes years, by imposing regulations that take effect immediately upon publication. To avoid OSHA’s public comment and hearing requirements, OSHA must identify an “extreme danger” for employees from “exposure to substances or agents that have been determined to be harmful, toxic, or new. The agency must also show that the emergency standard is necessary to protect workers from this danger.

OSHA failed to meet these statutory requirements, according to the 5th Circuit. The 5th Circuit stated that OSHA had failed to meet these statutory requirements and raised “serious constitutional concerns”. According to the government, both cases were incorrectly decided by the appeals court.

In the motion, the government reaffirms that the COVID-19 virus is a physically dangerous agent or a new hazard. According to the government, it’s both. They cite favorable dictionary definitions, OSHA prior policy and the discovery of the coronavirus which was “unknown in the United States” until 2020.

However, the 5th Circuit suggested it was not old enough to warrant an emergency standard. The 5th Circuit wondered how OSHA took nearly two years to declare a workplace emergency. Changes in circumstances such as the reopening of businesses, vaccine developments, and the proliferation of the highly contagious delta strain are all factors that OSHA cites for their delay.

According to the 5th Circuit, OSHA is only responsible for hazards unique to work environments or particularly acute in those places. It does not have to deal with dangers “widely prevalent” within society. COVID-19 is a contagious illness that can spread to anyone, anywhere, according to the 5th Circuit.

According to the government, OSHA requires workplace precautions against bloodborne pathogens that can be transmitted outside of work. OSHA also has long enforced workplace sanitation and fire regulations, even though these concerns aren’t workplace specific. The government states that workplace dangers include possible exposure to communicable diseases due to being close to others. The document also claims that COVID-19 is necessary. IsThis is a very serious workplace risk because employees often come together for long periods of time and interact. Thus, workplace transmission of highly contagious viruses can be extremely dangerous.”

OSHA’s “staggeringly wide” rules that didn’t take into consideration the risk variations between workplaces and industries was faulted by the 5th Circuit. This tailoring, according to OSHA, is not legal or practicable.

OSHA’s cutoff of 100 employees made the ETS “underinclusive,” according to the appeals court. This suggests that OSHA was not motivated by safety at work, but rather President Joe Biden’s desire to increase the national vaccination rate. OSHA says it is proceeding in a “stepwise manner” and applying the ETS to companies OSHA feels are able to quickly comply with its regulations. The government says that the agency might eventually decide to add smaller companies.

OSHA’s mandate is a potential problem under the nondelegation doctrine. The doctrine was supposed to preserve the separation of power by limiting executive agencies from making law. It is noted by the government that the nondelegation doctrine was almost never used to reverse a grant of congressional power. It only demands that these grants contain an “intelligible rule” to direct agency actions, which the government believes is easily accomplished by the ETS statute criteria.

OSHA’s regulation of non-economic activity, according to the 5th Circuit, “likely exceeds federal government authority under Commerce Clause.” According to the 5th Circuit, OSHA’s rule was found to be in violation of the Commerce Clause. [i.e., the individual decision to forgo vaccination]This falls directly within the USA’s police power. This is the government’s incorrect way of looking at the mandate.

“Congress has long been regulating interstate commerce firms in various ways,” notes the motion. “The Supreme Court upholds such regulations of employment conditions within Congress’s Commerce power,” it states. The government says the ETS “regulates employers who have affirmatively chosen to participate in interstate commerce” and “establishes conditions for employees’ safe participation in employment—an economic activity.” It says that the ETS is similar to “many federal laws regulating business conduct” and that it “prescribes rules regarding how to participate in this commercial activity. Sometimes, these rules require that you take actions.”

OSHA was to “take no measures to implement or enforce this Mandate” according to the 5th Circuit. It had been scheduled for full implementation on January 4th, “until further court orders.” Because “the harms to the government and the public…of continuing the stay would be enormous,” the administration argues, the 6th Circuit should dissolve it entirely. Afailing this, the government suggests that the 6th Circuit limit the ETS stay to vaccine-related sections, so the December 4 deadline for testing and masking can be met.