OSHA Suspends Enforcement of Biden’s Vax-or-Test Mandate

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In Brief

  • The Facts:
    • OSHA has suspended its enforcement of the Biden administration's vax-or-mask mandate for companies with more than 100 employees.

    • A 5th Circuit US Appeals court has affirmed a stay on the mandate, referring to it as "staggeringly overboard" and a one-size fits all approach that doesn't account for individual circumstance.

    • Biden's administration still recommends companies follow the mandate.

  • Reflect On:
    • While the efficacious vaccines have proven to be effective at preventing severe disease and death from SARS CoV-2, vaccinated workers can still become infected and transmit the virus, particularly as vaccine efficacy wanes.

    • What are the societal effects of firing working people from their jobs for not complying with an arguably authoritarian mandate when there are reasonable accommodations (such as testing) available to ensure a safe workplace?

    • As a principle, can we pick and choose where and when we recognize the right of bodily autonomy when it comes to personal medical decisions?

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In the aftermath of a recent opinion issued by the U.S. Court of Appeals for the 5th Circuit, the Occupational Safety and Health Administration (OSHA) is suspending its enforcement of the Biden Administration’s rules requiring businesses with at least 100 employees to be vaccinated or face weekly tests and mask requirements.

In its ruling to halt implementation of Biden’s vaccine mandate, the 5th U.S. Circuit Court of Appeals argued that the mandate is “staggeringly overbroad”, likening it to a “one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers),” according to the three-person panel.

It was inevitable that the Biden mandate would trigger a flurry of judicial challenges and raise constitutional issues; a full-fledged legal brawl is now underway. As the courts continue to issue jurisprudence surrounding the controversial mandate, uncertainty remains with respect to future viability of the federal government directive which would levy hefty fines against employers found in “willful violation” of the mandate.

The Sixth Circuit Court in Ohio is expected to take on the issue next, and will likely affirm the 5th Circuit’s opinion given the judicial makeup of the court where the majority of the judges are Republican-appointed. Should the matter make its way to the Supreme Court – which is likely – the Biden mandate will have to survive a significantly different Court after former President Trump nominated three justices in just one term during the course of his tenure.

Despite the injunction from the appellate court, The White House is nonetheless advising employers to begin enforcement of its rules, which are set to take effect in January:

“We say do not wait to take actions that will keep your workplace safe. We’re trying to get past this pandemic and we know a way to do that is to get people vaccinated. So people should not wait. They should continue to go move forward and make sure that they’re getting their workplace vaccinated.”

White House deputy press secretary Karine Jean-Pierre

The legal battle currently taking place reflects the deep ideological divisions persisting in the United States as it pertains to pandemic policies, where efforts to stymie the spread of Covid-19 pit civil liberty concerns against federal mandates. While some have argued that the mandates will save thousands of lives, others argue they go too far in undermining personal autonomy. For now, the courts tend to agree with the latter, as typified by the 5th Circuit’s reasoning in affirming the hold on Biden’s mandate:

“The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials.”

~Circuit Court Judge Kurt Engelhardt

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