Decision on Vaccine Mandate Stay Expected This Week

An appeals court will decide whether to lift or retain the hold on enforcement of the rule for private employers.

December 16, 2021

COVID-19 Vaccines

ALEXANDRIA, Va.—The 6th U.S. Circuit Court of Appeals in Cincinnati has denied motions for an initial hearing en banc that would have put the legal challenge to the Biden Administration’s vaccine-or-test mandate for private employers before the entire 16-judge bench instead of the as-yet unnamed three-judge panel set to hear the case.

NACS is representing the convenience and fuel retailing industry as a petitioner in the cases consolidated before the 6th U.S. Circuit Court of Appeals challenging the Occupational Safety and Health Administration’s emergency temporary standard requiring that private-sector businesses with 100 or more employees have all their workers vaccinated or tested weekly for COVID-19. NACS last week filed a brief opposing the Biden Administration’s emergency court motion with the 6th Circuit to reinstate the vaccine mandate.

Shortly following the initial OSHA ruling, the 5th U.S. Circuit Court of Appeals granted an emergency stay temporarily halting enforcement of the COVID-19 vaccine mandate for private employers, citing “grave statutory and constitutional issues.”

In November, NACS joined with nearly a dozen state and national trade associations in suing OSHA over its COVID-19 vaccination and testing ETS. The petitioners seek a stay of the effective date of the mandate pending court challenges and ask that the court vacate and set aside the ETS.

The judges were divided 8 to 8 on the request that the full court hear the case at the outset. Lacking the required majority of active justices to consent to an en banc hearing, the court denied the petitioners’ motion for an “all-hands-on-deck” review.

Addressing the merits of the emergency temporary standard, Chief Judge Jeffrey S. Sutton dissented from the denial of petitions requesting an initial hearing en banc, an encouraging signal that the case may find favorable footing if it lands as expected before the U.S. Supreme Court. As Chief Judge Sutton notes, the 6th Circuit Court of Appeals “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”

Judge John K. Bush also issued a dissent addressing the merits of OSHA’s emergency temporary standard, saying that Congress doesn’t have the constitutional authority to mandate compulsory vaccines for 80 million Americans. Judge Bush writes, “But caselaw is clear. Neither Congress nor OSHA may pretextually relabel such an area as ‘commerce’ to gain what is, in effect, a novel police power of the national government.”

Chief Judge Sutton acknowledges the challenges of the pandemic and the utility of the available vaccines against COVID-19 infection but points out that vaccinations are not a temporary measure and predicts that the challengers are likely to prevail on the merits when it comes to their petitions targeting the emergency rule,” he wrote in his dissent.

“It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end,” Chief Judge Sutton wrote in his dissent. “It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on “the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift. Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The Act does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.”

He argues that the Secretary of Labor’s authority to issue emergency temporary standards “does not justify the first vaccinate-or-test mandate in federal labor law history. This emergency power extends only to ‘necessary’ measures, namely measures indispensable or essential to address a ‘grave’ danger in the workplace.”