An appeals court on Friday put the vaccine mandate imposed on large employers by the Biden administration on pause until it can be fully litigated.
A three-judge panel of the 5th U.S. Circuit Court of Appeals — the same court that last week cited “grave statutory and constitutional” concerns about the mandate in first putting it on hold — issued its ruling on Friday after consolidating a number of suits into one decision.
The panel includes one judge who was appointed by former President Ronald Reagan and two appointed by former President Donald Trump, according to The Washington Post.
Under the mandate, employers with at least 100 employees must require workers to either be vaccinated against COVID-19 or tested weekly.
The ruling said the stay is required because the private companies suing over the mandate would face severe harm if it is allowed to remain in force as the lawsuits move forward.
“The Mandate imposes a financial burden upon them by deputizing their participation in [the Occupational Safety and Health Administration’s] regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the judges wrote in their opinion.
They also suggested that the mandate was an example of vast federal overreach.
“The Occupational Safety and Health Act, which created OSHA,” the judges wrote, “was not … intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”
The panel expressed doubts that the mandate was constitutional and went on to thoroughly trash it.
“On the dubious assumption that the Mandate does pass constitutional muster — which we need not decide today — it is nonetheless fatally flawed on its own terms,” the judges wrote.
“Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”
The panel poked holes in the idea that the mandate was necessary as an emergency measure.
“The Mandate’s stated impetus — a purported ‘emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to — is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.”
The judges hinted that the mandate is a thinly veiled bit of policy-making on the part of the Biden administration, noting that it was the expedient seized upon “after the President voiced his displeasure with the country’s vaccination rate in September” and when “the Administration pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate.”
The panel said OSHA’s emergency powers should be used carefully in limited situations.
“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 judges added that “it remains unclear that COVID-19 — however tragic and devastating the pandemic has been — poses the kind of grave danger” OSHA is allowed to address through its emergency powers.
They said the mandate fails to take into account the realities of the coronavirus pandemic.
“The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees,” the judges pointed out.
“All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains — the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.”
The judges said the true purpose of the mandate was transparent.
“The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate,” the judges wrote.
“The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
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