The U.S. Occupational Safety and Health Administration (OSHA) has officially suspended implementation and enforcement of its controversial COVID-19 vaccine mandate for private employers of 100 or more people. A statement posted yesterday to OSHA’s website 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. (emphasis added)
The move puts businesses in an awkward position. On the one hand, with OSHA standing down for the time being, employers can relax their own measures towards demanding their employees be vaccinated or get tested weekly. But on the other hand, the Biden administration is continuing to urge private businesses to become enforcers of its vaccinate-everyone-no-matter-what fetish. The Epoch Times reports:
“We think people should not wait,” White House principal deputy press secretary Karine Jean-Pierre told reporters on Nov. 8, responding to a question on whether employers should hold off on requiring employees to be vaccinated after the court put the mandate on hold.
“We say: do not wait to take actions that will keep your workplace safe,” Jean-Pierre said. “It is important and critical to do, and waiting to get more people vaccinated will lead to more outbreaks and sickness.”
Employers “should not wait” for legal matters to be resolved before adhering Biden’s vaccine requirement, Jean-Pierre added.
“They should continue to go—move forward and make sure that they’re getting their workplace vaccinated,” she said.
Meanwhile, the lot has been drawn and the conservative-leaning Sixth Circuit Court of Appeals will hear the consolidated case against the OSHA mandate.
The Sixth Circuit is seated in Cincinnati and serves four states square in the American heartland (Ohio, Michigan, Tennessee, and Kentucky). Justices nominated by Republican presidents outnumber Democrat nominees 10–6.
The case the court will hear is a consolidation of multiple filings against the OSHA ETS, filed by private employers, religious organizations, a majority of U.S. states, individuals, and other groups.
In its Nov. 12 stay order, the Fifth Circuit Court of Appeals found multiple problems with the OSHA ETS, including that it was overly broad:
But the Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.” … Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size- fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
The 22-page ruling enumerates quite a few problems with the mandate on private businesses, casting doubt on whether the OSHA initiative will survive the scrutiny of the Sixth Circuit. While we hope and pray for a victory for liberty and common sense, such an outcome would still leave federal employees and employees of government contractors under their own onerous and invasive mandate.