Republicans are fighting back at the Biden administration’s vaccine requirement for businesses with 100 or more workers, as the United States Court of Appeals for the Fifth Circuit placed a temporary emergency stay on the rule on Saturday. The decision was issued by a panel of three judges – one appointed by Ronald Raegan and two by Donald Trump. The 5th Circuit covers Louisiana, Mississippi and Texas and is considered one of the most politically conservative circuit courts in the nation. (It was the same court that reinstated Texas’s new restrictive abortion law). The state of Indiana joined the lawsuit as well.
Louisiana Attorney General Jeff Landry said in a statement, “The president will not impose medical procedures on the American people without the checks and balances afforded by the constitution.”
The new OSHA rule is not considered a true vaccine mandate, however, because it allows employers to offer a testing option for those who refuse vaccination.
Normally, circuit court decisions only apply to the states the court covers. Landry made the case that the language employed by the judges gave the decision a national scope. At least 27 states filed lawsuits challenging the rule in several circuits.
The U.S. Labor Department’s top legal adviser, Solicitor of Labor Seema Nanda, said in response that the department is “confident in its legal authority to issue the emergency temporary standard on vaccination and testing. The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”
Under the Occupational Safety and Health Act of 1970, OSHA has the ability to set health standards aimed at reducing the threat of disease that poses “grave danger” to employees. The term “grave danger” poses some challenges, however. The Cato Institute calls it “a vague and open‐ended standard” that “opens up one set of possible challenges.” One challenge cited by Cato is whether a test‐or‐vax mandate that applies even to employees who work from home, or who have already contracted the virus and recovered, truly needed to protect other workers from “grave danger.” Some opponents also question whether the weekly testing option truly protects employees from grave danger, especially since the Delta variant of the virus can be contracted and transmitted by vaccinated employees.
Historically, the Supreme Court upheld two vaccine mandates during a Small Pox outbreak, but those were local and state mandates. The administration will probably argue that diseases don’t recognize state boundaries.
Does this ruling mean it’s okay to hold off getting vaccinated to retain your job?
As of today, no. This particular stay doesn’t have an immediate impact, as the first major deadline in the new rule is December 5. Aside from that, employers are still free to require employees be vaccinated regardless of the court battles against the federal rule. Some employees around the country are filing their own lawsuits against their employers over vaccine mandates. In Texas, a lawsuit was brought against a hospital by 178 of its employees. It was thrown out by a judge.