“Before the court is the petitioners’1 emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard2 (the “Mandate”) pending expedited judicial review,” the order said. “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
The court then ordered the federal government to respond by November 8th. The OSHA regulation was officially issued on Thursday, after the Biden administration initially announced it in September.
“The Biden administration ordered U.S. companies Thursday to ensure their employees are fully vaccinated or regularly tested for Covid-19 by Jan. 4 — giving them a reprieve over the holidays before the long-awaited and hotly contested mandate takes affect,” CNBC reported.
“The administration on Thursday also pushed back the deadline for federal contractors to comply with a stricter set of vaccine requirements for staff from Dec. 8 to Jan. 4 to match the deadline set for other private companies and health-care providers,” the report added.
“The newly released rules, issued by the Occupational Safety and Health Administration under the Labor Department, apply to businesses with 100 or more employees,” the report noted. “All unvaccinated workers must begin wearing masks by Dec. 5 and provide a negative Covid test on a weekly basis after the January deadline, according to the requirements. Companies are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in labor union contracts. Anyone who tests positive is prohibited from going into work.”
“Companies also have until Dec. 5 to offer paid time for employees to get vaccinated and paid sick leave for them to recover from any side effects,” the report added.
The Occupational Safety and Health Administration will also be policing workplaces nationwide to ensure compliance with the unlawful mandate.
“OSHA, which polices workplace safety for the Labor Department, will provide sample implementation plans and fact sheets among other materials to help companies adopt the new rules,” CNBC reported.
“OSHA will also conduct on-site workplace inspections to make sure companies comply with the rules, a senior administration official said. Penalties for noncompliance can range from $13,653 per serious violation to $136,532 if a company willfully violates the rules,” the report added.
“The vaccine mandate, which covers 84 million people employed in the private sector, represents the most expansive use of federal power to protect workers from Covid-19 since the virus was declared a pandemic in March 2020,” it continued.
Twenty-four state attorney generals in mid-September threatened to sue the Biden administration over the federal vaccine mandate after it was announced by executive order. These state AGs delivered a letter to the Biden administration that is worth reading in full.
“We, the Attorneys General of 24 states, write in opposition to your attempt to mandate the vaccination of private citizens,” the AGs’ letter reads. “On September 9, you announced that you would be ordering the Department of Labor to issue an emergency temporary standard, under the Occupational Safety and Health (OSH) Act , which would mandate that private sector employers require most of their employees to either get a COVID-19 shot, submit to weekly testing, or be fired. Your plan is disastrous and counterproductive. From a policy perspective, this edict is unlikely to win hearts and minds-it will simply drive further skepticism. And at least some Americans will simply leave the job market instead of complying.”
“The policy also fails to account for differences between employees that may justify more nuanced treatment by employers,” the letter added. “Most glaringly, your policy inexplicably fails to recognize natural immunity. Indeed, the CDC estimated that by late May 2021, over 120 million Americans had already been infected, and that number is likely tens of millions higher today And your sweeping mandate fails to account for the fact that many workers-for example, those who work from home or work outdoors-are at almost no risk of exposure from their co-workers regardless of vaccine status. A one-size-fits-all policy is not reasoned decision-making. It is power for power’s sake.”
“Your edict is also illegal,” the letter adds. “You propose to enforce your mandate through the rarely used emergency temporary standard provision in the OSH Act. According to the Congressional Research Service, the Department has attempted to adopt an emergency temporary standard only one other time since 1983 (and that one exception came in June of this year and is being challenged). An emergency temporary standard does not have to go through notice and comment and can be made effective immediately upon publication. Because of this lack of process and oversight, courts have viewed these standards with suspicion. Between 1971 and 1983, the Occupational Safety and Health Administration (OSHA) issued nine emergency temporary standards. Of those, six were challenged. The courts fully vacated or stayed the standards in four cases, partially stayed the standards in another, and upheld only one of the six.”
Biden’s federal vaccine mandate has met its first challenge in court. Thus far, it is looking grim for the blatantly unconstitutional decree.
**By Kyle Becker