A federal appeals court ruled in a split decision on Dec. 17 that the Biden administration’s vaccine mandate for private companies with 100 or more employees 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 the Occupational Safety and Health Administration (OSHA), before it was paused, meant that some 84 million U.S. workers faced a Jan. 4, 2022, deadline vaccinated or undergo weekly testing. That deadline has been extended until Jan. 10, 2022.
“To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance … before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” the agency announced on its website on Dec. 18.
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 OSHA, should be struck down because it exceeds OSHA’s authority under the Occupational Safety and Health Act.
“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,” Judge Julia Smith Gibbons wrote in her majority opinion (pdf) on Dec. 17.
“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 nominated to the court by President George W. Bush, a Republican. The other judge who ruled in favor of the OSHA mandate, Jane Branstetter Stranch, was nominated by President Barack Obama, a Democrat.
Last week, the 6th Circuit’s active judges rejected a move to have the entire panel consider the case, on an 8–8 vote, The Associated Press reported.
The dissenting judge, Joan Louise Larsen, was appointed by President Donald Trump, a Republican. In her dissenting opinion, she noted that Congress didn’t 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 wrote. “An emergency standard must be ‘necessary to protect employees from [grave] danger.’
“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.
“[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 aren’t fully vaccinated would have to wear masks and be tested on a weekly basis for the CCP (Chinese Communist Party) virus, which causes the disease 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 an additional $13,600 levy per day that an employer doesn’t abate the violation. For a willful or serious violation, OSHA can issue a fine of 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. “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.