On November 6th, the Fifth Circuit Court of Appeals put a temporary stay on OSHA’s ability to implement the Biden administration’s COVID-19 Vaccine Mandate for private businesses, which required that as of January 4th, businesses with more than 100 employees or more must guarantee that each employee is either vaccinated against COVID-19, or be tested weekly and wear a mask. Six days later, on November 12th, when the Biden administration challenged this stay, the Fifth Court of Appeals reaffirmed its initial decision to implement the stay, and stated that “OSHA cannot take any steps to implement or enforce the Mandate until further court order.” This ruling effected businesses in Texas, Mississippi, and Louisiana, which is where the court presides.
Just a few days after this ruling, the Labor Department’s Occupational Safety and Health Administration took it upon themselves to suspend the implementation and the enforcement of the Biden administration’s COVID-19 Vaccine Mandate.
Why was OSHA so quick to back down on their ETS?
The answer lies within a 24-page ruling by a three-panel judge for the Louisiana Fifth Court of Appeals, which cracks the foundation of OSHA’s implementation of the Biden administration’s COVID-19 Mandate, and begins to expose a corrupt structure bolted together by inconsistencies and contradictions . Let’s dive in to a few main reasons why the court ruled that OSHA stop the implementation of this mandate for private businesses.
The most important reasoning behind the Fifth Circuit Court’s decision to block OSHA’S ability to mandate comes down to legalities and America’s system of federalism. The fight between the power of the federal government and the state government is a timeless conflict that has proven to be rather problematic time and time again, right now being a perfect example. In the United States constitutional law, the state government holds what is traditionally called “police power,” which essentially gives states the ability to “police” an individual’s behaviors and actions, and protect the population from safety and health threats. “Police power” was intentionally not given to the federal government, the states didn’t trust the federal government to make decisions about public safety, and thought it would be best for state politicians who are more understanding of the local communities to hold this decision-making power. In that same vein, under the Commerce Clause, the Constitution only gives the federal government jurisdiction over things that are economic in nature. Since an individual’s choice to remain unvaccinated and refuse regular testing is a behavior or action, and does not relate to commerce, it is technically only up to the state government, not the federal government, to mandate vaccinations. Being that OSHA was originally enacted by the United States Congress, a branch of the federal government, OSHA seemingly has no right to enforce vaccine mandates. However, due to the many grey areas within the constitution and United States law, the legality of this mandate is still up for question.
Legalities aside, as the Fifth Circuit Court points out in their ruling, the mandate is also flawed in its inclusion as well; it is simultaneously overinclusive and underinclusive. It is overinclusive in nature in that it applies to basically all employees in all industries as well as workplaces in America, thus failing to acknowledge the clear differences in risks and circumstances of workers. For instance, why is the security guard of a company with more than 99 employees, who only works during the lonely night shift, subjected to the same mandates as a meatpacker in a company with more than 99 employees but works in a crowded warehouse? Furthermore, it is underinclusive in nature as it only saves those employees in companies with 99 or more workers from the “grave danger” of COVID-19, while those companies who have 98 employees or less are ignored from the same threat.
Up until the recent, OSHA agreed that a universal mandate in the workforce would not prove beneficial. In fact, they released a statement saying that “Based on substantial evidence, OSHA determined that an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive.” They went on to say that “[a]dequate safeguards for workers could differ substantially based on geographic location, as the pandemic has had dramatically different impacts on different parts of the country. State and local requirements and guidance on COVID-19 are thus critical to employers in determining how to best protect workers, and OSHA must retain flexibility to adapt its advice regarding incorporation of such local guidance, where appropriate. . . .” (See Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus at 33–34, In re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020). At the time that these statements were made, when COVID-19 was at its peak, OSHA clearly had no intention of imposing any sort of mandate.
In addition to this, OSHA has the ability implement an ETS for COVID-19 on certain grounds, such as if the threat of COVID-19 is considered an emergency, and if the threat of COVID-19 is considered “grave danger.” The panel of judges on the Fifth Circuit Point found that COVID-19 could not necessarily qualify as an emergency, as the globe has been facing the pandemic for almost two years, and OSHA only decided to act on this “emergency” recently. Moreover, it might not qualify as “grave danger” because (1) the effects of COVID-19 reach from “mild” to “critical”; (2) the level of severity of the spread of COVID-19 altered greatly through time; and (3) 78% of Americans aged 12 and older are either partially or fully inoculated against COVID-19.
It seems as though the Biden administration and OSHA alike should have looked further into the legalities of the COVID-19 vaccination mandate for private businesses prior to implementation. However, at the same time, one must wonder if the Biden administration cared to take it upon themselves to even look; their indifference to the constitution has never had any consequences or repercussions in the past, why would their behavior change?