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OSHA has ‘suspended activities’ related to Biden’s vaccine mandate

November 18, 2021

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The Occupational Safety and Health Administration suspended work on President Biden’s vaccine mandate after a federal appeals court hit pause on rules that would force companies with 100 or more employees to require COVID-19 vaccinations or regular testing for coronavirus infection.

OSHA said the 5th U.S. Circuit Court of Appeals’ decision to stay the mandate forced its hand but that the fight over Mr. Biden’s rule, or emergency temporary standard (ETS), isn’t over.

“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,” the agency said on its website.

The 5th Circuit froze the mandate late Friday, citing “a multitude of reasons” to believe that a legal challenge is “likely to succeed on the merits.” OSHA’s decision to stop its work went largely unnoticed until Wednesday.

The suspension was the latest reminder of the fault lines around Mr. Biden’s decision to reach into the private sector and require big employers to ensure that their workers are vaccinated by Jan. 4 or are tested for the coronavirus at least once a week.

The regulation has sparked dozens of lawsuits and pushback from business groups, which say they don’t want to wrangle with their employees on the cusp of the holiday season and can’t afford to lose workers in a tight labor market.
Employers aren’t required to develop a roster of vaccinated and unvaccinated employees until early December, and the testing rules don’t kick in until the new year. Even so, challengers celebrated OSHA’s suspension as a sign that the mandate is teetering and they should accelerate their efforts as the fight pivots to the 6th U.S. Court of Appeals.

While I am pleased with the actions taken by the court and that OSHA has subsequently suspended President Biden’s unconstitutional vaccine mandate for now, I will continue fighting to put a full stop to his efforts to fire Americans for choosing to not get the vaccine,” said Sen. Roger Marshall, Kansas Republican. “Joe Biden’s mandate is a slap in the face to so many people, including our essential workers, who answered the call last year. These are real people working to feed their families and pay their mortgages.”

Mr. Marshall, all 49 other Senate Republicans and more than 160 House Republicans backed a disapproval resolution Wednesday that would use the Congressional Review Act to quash the OSHA regulation. Though it is unlikely to succeed, the push will force Democrats to vote either in favor or in opposition to the mandate.
Meanwhile, the federal government is expected to ask the 6th Circuit to lift the stay imposed by the 5th Circuit as the fight inches closer to the U.S. Supreme Court.

The Sixth Circuit can either lift the Fifth Circuit’s stay or leave it in place. But if the Sixth Circuit leaves the stay in place, then the Biden administration will go to SCOTUS quickly,” Josh Blackman, a professor at South Texas College of Law, said in an email in reference to the high court.

Missouri Attorney General Eric Schmitt, a Republican, highlighted the 6th Circuit showdown as he took a victory lap Wednesday on OSHA’s decision to pause the mandate.

“OSHA announced that they would suspend enforcement of their illegal emergency temporary standard that mandates vaccines or testing on private employers,” he said. “This is a huge victory for the people of Missouri and businesses across the country, and an important step to completely halting these vaccine mandates, but there is more work to be done. Our case has now moved to the 6th Circuit Court of Appeals, and we’re optimistic that we will prevail in completely halting this vaccine mandate once and for all.”

Mr. Biden is pushing a series of vaccine mandates as he tries to fulfill his pledge to wrangle the virus and rebuild the economy. Roughly 59% of the U.S. population is fully vaccinated, and 8 in 10 eligible Americans have come forward for at least one dose, though 62 million eligible Americans remain on the sidelines.

COVID-19 cases are increasing across the country again to about 80,000 per day, and the steady drop in hospitalizations has flatlined. The delta wave that smacked the South in late summer is moving into other regions, including the Mountain West and parts of the Upper Midwest and New England.

Mr. Biden mandated vaccines for federal workers and for 17 million health care workers at providers receiving Medicaid and Medicare payments. Agencies will begin to enforce the mandate for federal workers later this month.

Under the OSHA standard, covered employers would need to take stock of which of their employees are vaccinated or not by Dec. 5. Unvaccinated employees would need to wear masks at the workplace and submit to testing at least once a week as of Jan. 4.

The OSHA regulation applies to 84 million workers. Though many of them are likely immunized already, OSHA estimates that the rule would compel 23 million people to get vaccinated.

Republicans, business groups and religious liberty advocates say the rule is an unprecedented overreach into Americans’ medical decisions and stretches OSHA’s authority over workplace safety.

Phillips Manufacturing & Tower Co., which is suing over the mandate, asked the 6th Circuit to hear the case “en banc,” meaning before a full slate of judges instead of a smaller panel.

The court is heavily stocked with Republican-appointed judges, so a full bench could help plaintiffs avoid an unfavorable panel. Still, they may want to speed up the process because the other side could make an en banc request if the court decision doesn’t go their way.

Whatever the 6th Circuit decides, “I think this is going to be resolved at the Supreme Court,” said Dan Meyer, the managing partner at the Tully Rinckey law firm’s office in Washington.

“The question is whether they see it as important enough to [rearrange] their schedule and hear it right away,” he said of the justices.

Attorneys for Phillips, which welds steel tubing and employs 104 people, said the company paid for antibody testing and found that 44 workers had produced immune responses from prior infection. They said workers tend to be physically separated while on the job, decreasing the risk of coronavirus transmission.

“Many of Phillips’s employees have declined the vaccine and are unlikely to get it even if it means the loss of their job,” the request says. “Despite extensive recruiting efforts, Phillips currently has seven openings that it cannot fill, due to general labor shortages in the local area.”

Attorneys said company employees are working overtime and averaging 10-hour shifts six days a week.

“The vaccination mandate (or its alternative of weekly daily testing) will make it even more difficult to fill the open positions,” they wrote, “let alone the new positions that will become vacant due to the workforce’s reaction to the mandate.”

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