The United States’ Department of Justice is planning to ‘vigorously defend’ President Biden’s Covid-19 vaccine mandate after a federal court upheld a stay on it.
A three-member panel of the 5th US Circuit Court of Appeals in New Orleans, which covers Texas, Louisiana and parts of Mississippi, affirmed it’s ruling on the Occupational Safety and Health Administration (OSHA) order in a new opinion published Friday.
That saw it order the US Department of Labor to take no further steps to implement its mandate, whose deadline is January 4.
The order would have required enforce vaccine requirements on all businesses with 100 or more employees.
‘This decision is just the beginning of the process for review of this important OSHA standard,’ a spokesperson for the Justice Department said in a statement. ‘The Department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.’
The Biden administration previously argued that halting implementation of the vaccine mandate could lead to dozens or even hundreds of deaths.
However, Circuit Court Judge Kurt Engelhardt wrote in the prevailing opinion that the mandate goes too far, and that he has ‘grave’ concerns about whether the edict is legal or constitutional.
‘The mandate is staggeringly overbroad,’ the opinion said. ‘The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).’
Attorney General Merrick Garland’s (pictured) Justice Department plans to fight a stay upheld by a federal court preventing the administration from implementing a Covid-19 vaccine mandate
The US 5th Circuit Court of Appeals in New Orleans
Biden had issued a vaccine mandate for all employers with 100 or more workers to issue their own vaccine mandate by January 4
Lawyers for the Justice and Labor departments filed a response Monday in which they said stopping the mandate from taking effect will only prolong the COVID-19 pandemic and would ‘cost dozens or even hundreds of lives per day.’
The mandate, which requires private companies with 100 or more employees to impose vaccine mandates on their workers by January 4, was officially announced by the Occupational Safety and Health Administration (OSHA) on Thursday – immediately leading to a flurry of lawsuits from Republican states and entities.
Engelhardt, on the other hand, argued that the mandate is causing more harm than good.
‘From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months,’ Engelhardt wrote.
At least 27 states have filed legal challenges in at least six federal appeals courts after OSHA released its rules on November 4.
White House Deputy Press Secretary Karine Jean-Pierre said Thursday Republicans are ‘getting in the way of saving lives’ by fighting back against Joe Biden’s new vaccine mandates
The federal government said in its court filings Monday that the cases should be consolidated and that one of the circuit courts where a legal challenge has been filed should be chosen at random on November 16 to hear it.
Vaccine mandates are deeply controversial in the United States. Supporters say they are a must to put an end to the nearly two-year coronavirus pandemic, while opponents argue they violate the Constitution and curb individual liberty.
The Fifth Circuit judges appeared to agree with the opponents.
‘The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials,’ Engelhardt wrote.
The rule was issued by OSHA and mandates that businesses with at least 100 employees require staff to get vaccinated or face weekly tests and face mask requirements.
White House officials had no immediate comment on the ruling, which was hailed as a victory by Texas Attorney General Ken Paxton.
‘Citing Texas´s ‘compelling argument’ the 5th Circuit has stayed OSHA´s unconstitutional and illegal private-business vaccine mandate’, Paxton said on Twitter.
Fellow Texan and Congressman Chip Roy praised the ruling as helping to stop vaccine mandates.
He tweeted: ‘5th Circuit reaffirms stay – because @JoeBiden is acting unlawfully and unconstitutionally in issuing order for employer vaccine mandate. #HealthcareFreedom #StopVaxMandates.’
And Libertarian commentator Robert Henneke also praised Friday’s decision, writing: ‘WE DID IT (AGAIN)!! 5th Cir. reaffirms grant of stay motion with 22 page published opinion explaining why #BidenAdministration private employer vaccine mandate is likely unlawful & unconstitutional.’
Nearly 68 percent of Americans have gotten at least one dose of the Covid-19 vaccine
Biden imposed the requirement in September, telling Americans that ‘our patience is wearing thin’ with those refusing to get inoculated.
Earlier this week, The White House said it was confident that it could beat any Republican challenges to its new workplace vaccine mandate and claimed Thursday that the GOP was trying to block the Biden administration from saving lives.
‘The question that we always have is and that we ask to the Republicans is why are they getting in the way?’ Deputy Press Secretary Karine Jean-Pierre said during Thursday’s White House press briefing.
‘Why are they getting in the way of trying to protect and save lives? That’s all we’re trying to do,’ she added.
Jean-Pierre said the White House is ‘pretty confident’ the new Occupational Safety and Health Administration rules imposing compulsory vaccines on private companies will hold up in court against a slew of GOP lawsuits currently being filed.
‘The administration clearly has the authority to protect workers and actions announced by the president are designed to save lives and stop the spread of COVID,’ Jean-Pierre said.
The debate over the mandate comes as infection rates in the US continue to drop.
On Friday, the nation reported less than 97,000 new daily cases and about 2,300 deaths, according to Johns Hopkins University.
About 67 per cent of eligible Americans are fully vaccinated against COVID, and more than 78 per cent have gotten at least one jab.
The new rule comes as there are already concerns over impacts the mandates could have on the already stunted U.S. economy, which is experiencing a worker shortage and supply chain issues ahead of the holiday season.
‘If you’re asking if we think the rules impact supply chain, the answer is no, we don’t think that it will,’ Jean-Pierre said at Thursday’s briefing.
Legal experts say it’s ‘fundamentally undemocratic’ and unconstitutional for Biden to use emergency orders meant for asbestos to compel workers to get the vaccine
As part of the White House’s aggressive new approach to fighting the pandemic, the president directed the Labor Department’s regulatory agency, the Occupational Safety and Health Administration (OSHA), to mandate all businesses with at least 100 employees either require all of them to be vaccinated or submit to weekly COVID testing.
The agency has the authority to issue an ’emergency temporary standard’ (ETS) if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it.
A Congressional report updated in July notes how rarely emergency standards are used. Before the COVID pandemic the last OSHA ETS was struck down in 1983, when a federal court said the agency failed to support its claim that asbestos exposure in the workplace needed to be further reduced due to a significant adverse impact on employees’ health.
OSHA issued an ETS in June to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that’s not possible.
It also requires relevant companies to give employees paid time off to get vaccinated or paid leave in the event they test positive.
And while the idea might be ‘well-intentioned,’ a Friday morning op-ed claims, Biden also risks ‘shredding the social fabric’ of an already divided country by stretching the bounds of constitutionality.
‘The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,’ Republican commentator Robby Soave wrote in the New York Times.
Duke University senior lecturing fellow Dan Bowling pointed out to McClatchy News that OSHA’s investigative and enforcement capabilities are relatively weak compared to the IRS or Securities and Exchange Commission.
‘If somebody falls off a ladder that was broken in a place of business and breaks his or her leg, that’s pretty easy to prove employer liability. The employer would have to report the accident under OSHA,’ Bowling said. ‘If someone catches COVID who works somewhere that doesn’t follow the vaccine mandate, how do you prove that?’
Among the parties challenging the strict measure in court are the Republican National Committee, as well as the governors of at least nine states.
South Dakota Governor Kristi Noem, who’s resisted implementing a mask mandate even when its COVID hospitalizations and deaths were among the highest in the country, promised to see Biden ‘in court.’
Georgia’s Gov. Brian Kemp vowed to ‘pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach.’
But in states like Montana, Texas and Florida, which all said they intend to sue, OSHA’s ETS rules predate similar existing state guidelines – which would make a legal case more of an uphill battle than states that created their own OSHA-approved regulatory bodies after the fact.
What is OSHA?
The Occupational Safety and Health Administration was created by President Richard Nixon under the Occupational Safety and Health Act of 1970.
OSHA has jurisdiction over most private and public workplaces across the country, but some states have their own OSHA-approved regulatory agencies.
The agency regulates health and safety standards in the workplace. To enforce that it’s able to conduct unannounced inspections ensuring those standards are met.
Since it was created workplace deaths fell dramatically by nearly 63 percent, according to OSHA. An estimated 14,000 workers – or 38 per day – were killed on the job in 1970. But 2018 the number fell to 5,250, despite a doubling of the total US workforce.
OSHA’s process for enacting new workplace standards includes consulting a number of relevant advisory committees linked to the Labor and Heath and Human Services Departments, as well as consulting business owners and allowing a window for public input, at least 30 days but ‘usually 60 days or more.’
Businesses in states with their own OSHA-approved agencies can ask for a ‘variance’ in the rule if they can’t comply by the effective date.
If the state is under federal OSHA jurisdiction then the agency will have to work with the state to determine if the exception can be granted
What is an Emergency Temporary Standard (ETS)?
An ETS allows OSHA to bypass the consultation process and public input window if it determines ‘workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.’
Emergency standards can take effect immediately but only stay in effect until replaced by a permanent standard.
That proposed permanent standard must go through the regular bureaucratic channels and be decided upon within six months.
During that time the temporary rule can be challenged in an appropriate federal court.
OSHA can issue ‘temporary variance’ rules to employers who prove they can’t comply with a regulation in time, but they have to demonstrate they are taking all the necessary and possible steps to protect workers, and show a roadmap toward compliance.