The future of an announced vaccine mandate by the Occupational Safety and Health Administration seems increasingly in doubt as court challenges grow and the challengers’ arguments are treated sympathetically by appeals court judges. It is likely that the Supreme Court will be called on to resolve the issues within the next couple of months.
The mandate was promulgated Nov. 5 in the form of an emergency temporary standard but was immediately stayed by the Fifth Circuit, which extended its stay Nov. 12. Unless overturned, the full mandate is set to take effect Jan. 4, 2022, after the holidays.
In its Nov. 12 newsletter, the American Waterways Operators said it is working with the Coast Guard to clarify its authority under the mandate. “… AWO sent a letter to Admiral Karl Schultz, Commandant of the Coast Guard, again urging the Coast Guard to assert its jurisdiction to ensure that unvaccinated mariners on live-aboard vessels that are not carrying passengers are not required to undergo weekly testing under the Occupational Safety and Health Administration’s emergency temporary standard for COVID-19 testing and vaccination for employers with 100 or more employees. AWO says it has been in close dialogue with the Coast Guard’s senior leadership since the publication of OSHA’s ETS and has been advised that the two agencies will be holding meetings during the third week of November. In its letter, AWO highlights the urgency of resolving this issue due to the rapid approach of the deadlines set by OSHA for compliance with the ETS and asks the Coast Guard not to delay clarification of its authority due to the current stay of the ETS imposed by the Fifth Circuit Court of Appeals or any other temporary stay or injunction that may be forthcoming.
The mandate applies only to employers with 100 or more employees, which leaves smaller towing companies unaffected. It also does not apply to employees working from home or working “exclusively outside.” It requires that regulated companies either adopt a mandatory vaccination policy for all employees or require masking and testing for the virus once a week for all employees—measures that some businesses are already doing.
Judges skeptical
The three-judge panel of the Fifth Circuit consolidated a number of challenges when it extended the stay.
The Fifth Circuit judges found the challenges “likely to succeed on the merits” because they had “cause to believe there are grave statutory and constitutional issues with the Mandate.”
They noted that OSHA had considered an ETS earlier in the COVID-19 crisis but had “reasonably determined” in June 2020 that it was not necessary. In OSHA’s 50-year history, it has issued only 10 ETS’s of which six were challenged in court and only one of the six survived the challenges.
The panel noted, “[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).” The judges also claim the mandate exceeds OSHA’s statutory authority.
The judges argue that the mandate makes no distinctions among various types of workplaces and conditions, operating as a “one-size-fits-all sledgehammer” rather than a “scalpel.”
When multiple court challenges are consolidated, a multi-circuit lottery “lottery” system is used. All of the appeals are consolidated before the circuit court is selected in the blind lottery, which then hears the challenges to the rule. The lottery was set to take place on or about Nov. 16.
David Murray can be reached at [email protected].
