Appeals Court Allows Biden Private Business Covid-19 Vax Mandate To Take Effect, Setting Up Supreme Court Showdown

Authored by Mimi Nguyen Ly (emphasis ours),

A federal appeals court late Friday in a split decision ruled that the Biden administration’s vaccine mandate for private employers of companies exceeding 100 people can take effect.

The 2–1 decision by a panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals dissolves the stay entered by the 5th U.S. Circuit Court of Appeals last month on the nationwide mandate.

The rule issued by OSHA meant that some 84 million U.S. workers faced a Jan. 4 deadline to get vaccinated before it was paused. It is unclear after the latest ruling Friday when the requirement will be in effect.

The case was brought by multiple businesses, including the American Family Association; multiple individuals; and several states, including Texas, Utah, and Mississippi. Petitioners said the mandate, promulgated as an Emergency Temporary Standard (ETS) by the Department of Labor’s Occupational Safety and Health Administration (OSHA), should be struck down because it exceeds OSHA’s authority under the Occupational Safety and Health Act.

The ruling comes after several industries – including airlines and the big three US automakers – agreed not to mandate vaccines for their union employees.

Judge Julia Smith Gibbons wrote in her majority opinion (pdf) on Friday, “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.”

She added, “Indeed, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace.”

Gibbons was appointed by President Ronald Reagan, a Republican. The other judge who ruled in favor of the OSHA mandate, Jane Branstetter Stranch, was appointed by President Barack Obama, a Democrat.

Earlier this week, the 6th Circuit’s active judges rejected a move to have the entire panel consider the case, on an 8–8 vote, reported The Associated Press.

The dissenting judge, Joan Louise Larsen, was appointed by President Donald Trump, a Republican. In her dissenting opinion, she noted that Congress did not authorize OSHA to create such a rule; furthermore, to work around Congress, the rule did not meet the emergency standard of necessity that the secretary of labor needed to bring it about.

“The Secretary has not made the appropriate finding of necessity,” she noted. “An emergency standard must be ‘necessary to protect employees from [grave] danger.’”

She wrote, “The purpose of the mandate is to protect unvaccinated people. The rule’s premise is that vaccines work. And so, OSHA has explained that the rule is not about protecting the vaccinated; they do not face ‘grave danger’ from working with those who are not vaccinated.”

She also added, “[A] multitude of petitioners—individuals, businesses, labor unions, and state governments—have levied serious, and varied, charges against the mandate’s legality. They say, for example, that the mandate violates the nondelegation doctrine, the Commerce Clause, and substantive due process; some say that it violates their constitutionally protected religious liberties and the Religious Freedom Restoration Act of 1993.  To lift the stay [by the 5th Circuit] entirely, we would have to conclude that not one of these challenges is likely to succeed. A tall task.”

Under the rule, employees who are not fully vaccinated would have to wear masks and be tested on a weekly basis for COVID-19. Exceptions would apply to those who work outdoors or from home.

The OSHA rule threatens fines of up to $13,600 per violation. It also threatens to fine an additional $13,600 per day that an employer does not abate the violation. For a willful, or serious, violation OSHA can issue a fine up to $136,000.

Arkansas Attorney General Leslie Rutledge denounced the ruling. In a statement, she indicated she would move to ask the U.S. Supreme Court to block it. “The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” she said.

South Carolina Attorney General Alan Wilson, who chairs the Republican Attorneys General Association, expressed disappointment in the decision. “We are confident the mandate can be stopped,” he wrote on Twitter, adding: “We will go immediately to the Supreme Court—the highest court in the land—to fight this unconstitutional and illegal mandate. The law must be followed and federal abuse of power stopped.”

Zachary Stieber and Nick Ciolino contributed to this report.