On Friday night, a federal appeals court in a split decision ruled that the Biden administration vaccination mandate for private employers of companies with more than 100 people can enter into force.
Cincinnati-based 6th U.S. Court of Appeals panel 2-1 decision overturns suspension listed by the 5th U.S. Court of Appeals last month on the national mandate.
The rule issued by OSHA meant that some 84 million American workers facing a deadline of January 4 get vaccinated before it is suspended. It’s unclear after Friday’s last ruling when the requirement will go into effect.
The case was brought by several companies, including the American Family Association; several individuals; and several states, including Texas, Utah, and Mississippi. The petitioners said the mandate, promulgated as a Temporary Emergency Standard (ETS) by the Department of Labor’s Occupational Safety and Health Administration (OSHA), should be rescinded as it exceeds authority. of OSHA under the Occupational Safety and Health Act.
Judge Julia Smith Gibbons wrote in her majority opinion (pdf) Friday, “Given OSHA’s clear and exercised power to regulate viruses, OSHA necessarily has the power to regulate infectious diseases that are not unique to the workplace.”
She added: “Indeed, no virus – HIV, HBV, COVID-19 – is unique to the workplace and only affects workers. And the courts have upheld OSHA’s power to regulate hazards that coexist in the workplace and in society, but pose an increased risk in the workplace.
Gibbons was appointed by President Ronald Reagan, a Republican. The other judge who spoke in favor of the OSHA mandate, Jane Branstetter Stranch, was appointed by President Barack Obama, a Democrat.
Earlier this week, active 6th Circuit judges rejected a decision to have the full panel consider the case, on an 8-8 vote, the Associated Press reported.
Dissenting Judge Joan Louise Larsen was appointed by Republican President Donald Trump. In her dissenting opinion, she noted that Congress had not authorized OSHA to create such a rule; furthermore, to bypass Congress, the rule did not meet the emergency standard of necessity that the Secretary of Labor needed to put it in place.
“The secretary did not draw the appropriate conclusion of necessity,” she noted. “An emergency standard must be” necessary to protect employees from [grave] danger.'”
She wrote: “The purpose of the mandate is to protect the unvaccinated. The premise of the rule is that vaccines work. Thus, OSHA explained that the rule is not to protect the vaccinated; they are not in “serious danger” when working with unvaccinated people. “
She also added: “[A] a multitude of petitioners – individuals, businesses, unions and state governments – have made serious and varied accusations against the legality of the warrant. They say, for example, that the warrant violates the doctrine of non-delegation, the commerce clause and substantial due process; some say it violates their constitutionally protected religious freedoms and the 1993 Restoration of Religious Freedom Act. To lift the suspension [by the 5th Circuit] entirely, we should conclude that none of these challenges are likely to succeed. A daunting task.
Under the rule, employees who are not fully immunized should wear masks and be tested weekly for CCP Virus (Chinese Communist Party), which causes COVID-19 disease. Exceptions would apply to those who work outside or from home.
The OSHA rule threatens fines of up to $ 13,600 per violation. It also threatens to impose an additional fine of $ 13,600 per day if an employer does not reduce the violation. For an intentional or serious violation, OSHA can impose a fine of up to $ 136,000.
Arkansas Attorney General Leslie Rutledge denounced the decision. In one declaration, she said she would ask the U.S. Supreme Court to block her. “The Sixth Circuit decision is extremely disappointing for the Arkansans as it will force them to get shot or lose their jobs,” she said.
South Carolina Attorney General Alan Wilson, who chairs the Republican Attorneys General Association, has expressed disappointment with the decision. “We are convinced that the warrant can be stopped,” he said wrote on Twitter, adding: “We will immediately go to the Supreme Court, the highest court in the country, to fight against this unconstitutional and illegal mandate. The law must be obeyed and federal abuses of power must be stopped.
Zachary Stieber and Nick Ciolino contributed to this report.
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