The Sixth Circuit Court of Appeals has ruled to dissolve the Fifth Circuit’s stay on the OSHA vaccine or test mandate. This means the mandate that makes no legal sense is back on.
Judge Stranch’s opinion starts off:
The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an EmergencyTemporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit for the following reasons.
The judge goes through the history of OSHA
Congress passed the Occupational Safety and Health Act of 1970 (OSH Act or the Act) and established OSHA “to assure safe and healthful working conditions for the nation’s work force and to preserve the nation’s human resources.” Asbestos Info. Ass’n/N. Am. v. Occupational Safety & Health Admin., 727 F.2d 415, 417 (5th Cir. 1984). It expressly found that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” 29 U.S.C. § 651(a). OSHA is charged with ensuring worker safety and health “by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.” Id. § 651(b)(5). To fulfill that charge, Congress authorized the Secretary of Labor (the Secretary) “to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.”
Id. § 651(b)(3). And it vested the Secretary with “broad authority . . . to promulgate different kinds of standards” for health and safety in the workplace.
The judge is right that OSHA was established to assure safe and healthful working conditions, but it was never meant for a virus that the business was not supplying as part of the work routine. OSHA was created because businesses used to have unsafe working conditions that were a part of manufacturing the products the company made. For example, if there is a work environment where things could fall from above and hurt someone, OSHA made it so that the company has to provide hard hats to employees who have to work in those conditions. Likewise, if an employee has to work with chemicals that are harmful to the worker, then the company must provide protection for the worker.
We are talking about a virus that the company did not bring to the employees. No company has a work environment that requires workers to work with COVID-19. And that’s why the Sixth Circuit should be overturned by the US Supreme Court.
Judge Stranch wrote about an occupation safety and health standard:
An occupational safety and health standard is one that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
Again, the judge speaks of conditions that a company could bring to an employee as part of their job and it has nothing to do with a virus.
Judge Larsen wrote a 20-page dissent. It begins:
As the Supreme Court has very recently reminded us, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority’s theme is that questions of health science and policy lie beyond the judicial ken. I agree. But this case asks a legal question: whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule pending final review.
The majority opinion describes the emergency rule at issue here as permitting employers “to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.” Maj. Op. at 7. With respect, that was the state of federal law before the rule, not after.
Here is what the emergency rule does. It binds nearly all employers with 100 or more employees,1 and requires them to “establish, implement, and enforce a written mandatory vaccination policy.” 29 C.F.R. § 1910.501(b)(1), (d)(1). It covers all employees, part-time, fulltime, and seasonal, except for those who work exclusively from home, outdoors, or alone. Id. [Emphasis added]
Read the entire opionion:
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