The Biden administration’s mandatory Covid-19 vaccination initiatives have met with an onslaught of resistance in the form of legal actions and many outright refusals to comply. From states banding together to file joint lawsuits to military personnel opting to face discharge rather than receive shots, the White House’s orders are being challenged with unprecedented fervor.
One of the most sweeping and controversial government measures has been the September 2021 issuance of “New Vaccination Requirement for Employers With 100 or More Employees.” Oversight and enforcement of this mandate fell to the Occupational Safety and Health Administration. However, OSHA’s subsequent Emergency Temporary Standard was put on hold by an injunction from the U.S. Sixth Circuit Court of Appeals and the mandate has now become a political football.
Why did OSHA issue a Covid-19 Emergency Temporary Standard in the first place?
The White House’s directive to large private employers offered a difficult choice – to either ensure all their workers are fully vaccinated by January 4, 2022, or to establish strict weekly Covid testing measures. Roughly 84 million workers are affected by this move.
The administration’s fact sheet sold the concept as a means to boost Covid-19 vaccination rates and thereby enhance workplace safety. The Department of Labor backed this rationale up, stating that the emergency order was issued to “address the grave danger of COVID-19 in the workplace.” Hence OSHA’s involvement as the entity in charge of national workplace safety and health matters. Tasked to take action, OSHA pressed forward with publishing a 154-page COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS) on November 5 to strongly encourage vaccination.
Under the direction of the White House, OSHA used the ETS to push for vaccinations while allowing an administratively burdensome and costly alternative for unvaccinated workers to be tracked and tested weekly. In its summary sheet, OSHA outlined workplace safety as the rationale for its ETS, citing that “a simple measure, vaccination, can largely prevent those deaths and illnesses” caused by Covid.
Interestingly, the DOL claimed the ETS has a secondary purpose – to “preempt state and local laws that interfere with the employer’s authority to require vaccination, face covering, or testing.”
OSHA's Emergency Temporary Standard slammed with immediate legal challenges
If the DOL thought OSHA’s emergency standard would somehow preempt state authority, it miscalculated. By November 12, the Court of Appeals for the Fifth Circuit issued a restraining order to prevent enforcement of the ETS. The court’s panel of judges took issue with OSHA’s rationale of using an emergency standard, citing that “the entire globe has now endured [Covid] for nearly two years.”
It further pointed to OSHA’s nearly two-month delay from the time of President Biden’s September order until the ETS’s publication. Fifth Court judges noted that in OSHA’s 50-year history, only 10 similar Emergency Temporary Standards had been put forth, with five of those defeated in court.
The panel reasoned that OSHA’s process bypassed a sufficient review process guaranteed by federal law, instead jumping ahead to impose burdensome regulations. Despite the court’s decision, the White House administration ignored the restraining order, with Press Secretary Jen Psaki telling businesses to carry on with the actions outlined in the ETS.
With blood in the water after the court’s ruling, Representative Fred Keller (R-Penn.) and Senator Mike Braun (R-Ind.) went on the attack. sponsoring simultaneous resolutions on November 17. Drawing from the Congressional Review Act, which “affords Congress a check on the rulemaking activities of federal agencies,” the twin resolutions aimed at halting the mandate received predictably strong Republican support (Braun’s House resolution garnered 206 cosponsors; Keller’s Senate resolution received 50).
The game of legal ping pong continues...
Soon after the Fifth Court’s decision on the “fatally flawed” OSHA ETS, and the White House’s apparent dismissal of the court’s ruling, Cincinnati’s conservative-heavy Sixth Circuit Court of Appeals got involved. But once the randomly selected court was tagged to hear a consolidated legal challenge of over two dozen lawsuits, Press Secretary Psaki doubled down.
“Our message to businesses right now is to move forward with measures that will make their workplaces safer and protect their workforces from COVID-19,” Psaki stated on November 18. “That was our message after the first stay issued by the Fifth Circuit. That remains our message and nothing has changed. We are still heading towards the same timeline.”
With the White House continuing to insist that large private employers fall in line, many ETS requirements began coming due. By December 6, the ETSs rules went live regarding mask wearing, recordkeeping, and reporting Covid-related worker hospitalizations or fatalities. Employers also were required by that date to collect proof of employee vaccination statuses.
The use of that medical data is already posing awkward problems. However, work centers must find ways to ensure unvaccinated employees are treated according to the ETS guidelines. Meanwhile, workers who do not or cannot show proof must be counted as unvaccinated and thus are subject to weekly testing when the January 4, 2022 deadline arrives…unless the ETS is struck down in court.
The current state of OSHA's imperiled Emergency Temporary Standard
The Biden administration’s stance may not have changed, but the Sixth Circuit has refused to entertain OSHA’s motions to “shorten the stay briefing and to set an expedited schedule for merits briefing,” per the National Law Review. The court further swatted down ill-fated requests to transfer proceedings away from the Sixth Circuit’s purview.
On December 9, as the tangled litigation procedures moved slowly forward, the Senate grabbed the ball, voting to block the OSHA vaccine mandate. Just prior to the vote, Senate GOP leader Mitch McConnell argued the government “cannot micromanage citizens’ personal choices without a legitimate basis in law and the Constitution.” He went on to claim, “President Biden’s absurd private-sector vaccine mandate is blatant overreach.” The Senate body mostly agreed, and now the measure will move on to the House.
Before the announcement, Press Secretary Psaki preemptively stated that “if [the resolution] comes to the president’s desk, he will veto it.” Supporting her provocative claim is the Statement of Administrative Policy, issued two days before the Senate’s vote, which writes, “The Administration strongly opposes Senate passage of Senate Joint Resolution 29 to nullify the Department of Labor’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which became effective on November 5, 2021. If Congress were to pass this resolution of disapproval, the President’s advisors would strongly recommend that he veto the resolution.”
