Late last week the 6th Circuit Court of Appeals removed a stay on the Biden administration’s vaccine mandate via OSHA for companies that employ more than 100 workers.
A three-judge panel in a 2-1 decision dissolved the stay previously granted by the 5th Circuit of the Occupational Safety and Health Administration “Emergency Temporary Standard” which would force employers with 100 or more workers to either require vaccination — or force employees to undergo weekly testing and wear masks at all times.
On Monday, the United States Supreme Court agreed to hear emergency appeals and Justice Brett Kavanaugh — who oversees the 6th Circuit — gave OSHA and the Biden administration until Dec. 30 to answer.
The Court is not deciding the validity of the ETS, simply whether the stay blocking implementation of the rule should be reinstated or not.
In dissolving the 5th Circuit’s stay, the majority found that OSHA had the authority to issue the ETS and — among other things — said the petitioners could not show “irreparable harm,” from the mandates.
Judges Julia Smith Gibbons — a George W. Bush appointee who authored the opinion — and Judge Jane. B. Stanch, who was appointed by Barack Obama, voted in the majority.
However, in a dissent, Judge Joan Larsen, who was appointed by former President Donald Trump, noted that the rule has been challenged by 27 different plaintiffs on grounds ranging from constitutional issues to OSHA’s authority to even issue the rule.
“[Petitioners] 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,” Larsen wrote. “To lift the stay entirely, we would have to conclude that not one of these challenges is likely to succeed. A tall task. To keep the stay, however, there is no need to resolve each of these questions; the stay should remain if we conclude that petitioners are likely to succeed on just one ground. In my view, the petitioners have cleared this much lower bar on even the narrowest ground presented here: The Secretary of Labor lacks statutory authority to issue the mandate.”
Kansas Attorney General Derek Schmidt, who filed one of the lawsuits against the mandate, said in a statement on Twitter that he believed the stay would be reinstated.
“I anticipate a decision from the Supreme Court in January,” he said. “In my view, the Sixth Circuit got it wrong on Friday when it let the OSHA mandate go forward, and I’m optimistic the Supreme Court will again block it.”
OSHA mandate redefines ‘large business’
If allowed to stand, the rule will require that “covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”
The Associated Press reports that “the requirements would apply to about 84 million workers at medium and large businesses, although it is not clear how many of those employees are unvaccinated.”
However, that statement flies in the face of established definitions of a “small business.”
While the definition varies by industry, the Small Business Administration generally regards a “small business” as a privately-held company, having from 100-1,500 employees and from $1-40 million in annual gross revenue, dependent upon the industry sector.
Such small businesses make up 99.7% of all US firms, so the federal vaccine mandate could potentially have a damaging impact across the entire economy if — as Reuters reports happened in Wichita — thousands of workers refuse the vaccine.
Contractor mandate remains blocked, Medicare mandate’s fate uncertain
Schmidt also noted that the same day the 11th Circuit upheld the preliminary injunction blocking the federal contractor mandate.
“While most headlines are focused on today’s OSHA mandate decision in the 6th Circuit, few have noticed that a panel of the 11th U.S. Circuit Court of Appeals today unanimously denied the Biden administration’s request to set aside our injunction that is blocking enforcement of the federal contractor vaccine mandate,” Schmidt said.
Oral arguments in that case are scheduled for January.
The Center for Medicaid and Medicare Services case has already been accepted by the Supreme Court, which will — again — only make a decision on the status of the injunction, not the merits of the case.
On Dec. 15 the Fifth Circuit stayed, in part, a nationwide preliminary injunction against enforcement on the CMS vaccination mandate.
The requirements remain blocked in the 25 states which were party to the litigation — including Kansas — but enforcement is dissolved in 25 other, mostly blue, states.
