A federal appeals court has blocked enforcement of the Occupational Safety and Health Administration’s vaccine and testing mandate for private employers, saying the requirements raise “serious constitutional concerns” and would severely harm businesses.
“From economic uncertainty to workplace strife, the mere specter of the mandate has contributed to untold economic upheaval in recent months,” a three-judge panel of the 5th U.S. Circuit Court of Appeals said in their opinion, issued Friday. The vaccine mandate also “threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).”
The Emergency Temporary Standard issued by OSHA Nov. 4 set a deadline of Jan. 4 for employees at companies of 100 or more to either be vaccinated or undergo weekly tests for COVID-19.
The New Orleans-based appeals court issued a temporary stay just two days after the ETS was released. But the court did not offer any reasoning beyond saying "the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.
Now, however, the court says the ETS will remain unenforceable “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”
The government had argued that the court should wait until the Multi-District Panel on Judicial Litigation assigns a circuit court to handle the matter, noting that similar petitions had been filed in five other federal appeals courts. The Justice Department said in a letter to the court that it expected the multi-circuit lottery to take place around Nov. 16.
Petitioners in the case include private companies, states (Texas, South Carolina, Louisiana, Mississippi and Utah), and trade groups such as FMI-the Food Industry Association, the National Association of Convenience Stores, and the International Foodservice Distributors Association.
“The companies seeking a stay in this case will … be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the mandate, the diversion of resources necessitated by the mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees,” the court said.
In a declaration filed with the court, Leslie Sarasin, President and CEO of FMI, said the group’s members “report not only that their workers have refused generous incentives offered to encourage them to get vaccinated but that many of these workers have told employers directly and unequivocally that they would choose to be fired if keeping their job required them to get vaccinated or submit to weekly testing.”
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The court said the mandate’s “strained prescriptions … make it the rare government pronouncement that is both overinclusive … and underinclusive.” It does not try to distinguish between “a security guard on a lonely night shift and a meatpacker working shoulder to shoulder in a cramped warehouse.”
"Rather than a delicately handled scalpel, the \mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly 'grave danger' the mandate purports to address," the court said.
“The most vulnerable worker in America draws no protection from the mandate if his company employs 99 workers or fewer,” the court said.
The ETS also “raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading” of the law, the court said.
The mandate “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the states’ police power,” the judges said.