Vaccine mandate suspended in light of injunction

Southside Matt

On November 4, the Occupational Safety and Health Administration (OSHA), a division of the U.S. Department of Labor (DOL) finalized a proposed rule requiring vaccinations or testing for COVID-19 of employees in companies with 100 or more workers. Officially titled “COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS),” the proposal was submitted to the Federal Register, where it was published and became effective the next day, November 5 under Docket Number OSHA-2021-0007.

Publishing the rule entered it into the Code of Federal Regulations (CFR) as 86 FR 61402. Without intervention or change, this provides the rule with similar enforcement policies as a Federal Law.

As rules such as this bypass the legislative process of Congress, they are subject to a “Public Comment” period required under the Administrative Procedure Act (APA, 5 USC § 552) of 1946. The Public Comment period for this rule runs through December 6 and comments can be submitted via the website regulations.gov.

Almost immediately as the proposed rule was published in the Federal Register, an emergency motion was submitted to the Fifth Circuit Court of Appeals by 43 plaintiffs, including the states of Texas, Louisiana, South Carolina, Mississippi, and Utah, requesting a stay of enforcement of the rule “pending expedited judicial review.” Citing the likelihood of “grave statutory and constitutional issues with the Mandate,” the injunction was issued while also affording OSHA, DOL, and the Secretary of Labor Martin J. Walsh and Assistant Secretary of Labor Douglas Parker until 5:00 pm (Central Time) on Monday, November 8 to respond to the initial petition. If needed, a further reply from the petitioners would be due by 5:00 pm the following day.

U.S. President Joe Biden’s Administration gave the indication on November 8 that they were not going to “stand down” as a result of the injunction. During a press briefing at the White House, Deputy Press Secretary Karine Jean-Pierre told reporters, “People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.”

Despite the Court’s seeming agreement of possible “statutory and constitutional issues” with the ETS, the U.S. Department of Justice (DOJ) responded to the initial stay calling the plaintiffs’ claim of harm “premature.” Claiming that the deadline of having workers vaccinated does not arrive until January, DOJ’s response indicates that delaying work on the ETS will “likely cost dozens or even hundreds of lives per day” from COVID-19. Further, the response counters the claim of issues by stating that “OSHA acted within its authority as established by Congress.”

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With DOJ seeming to claim that the ETS provides for the “general welfare” as is the Government’s duty under the U.S. Constitution, Judge Kurt D. Engelhardt of the Fifth Circuit Court of Appeals provided that the Court found otherwise. “From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.”

Judge Engelhardt seems to be referencing the so-called “lockdowns” that have occurred over the past year-to-eighteen months in various areas, preventing people from being able to work and businesses to operate. This led to an increase in the unemployment rate and the number of people who could not economically survive without assistance.

The judge did not stop there, though.

In writing the opinion that keeping the stay in place, Judge Engelhardt sustains that the decision by the Court is not based solely on economics. “The public interest is further 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.” In other words, Judge Engelhardt was saying that the principle behind the First Amendment of the Constitution is also applicable here: the First Amendment, according to documents such as the Federalist Papers, is to protect those who would speak out against Government. This statement by Judge Engelhardt seems to state that those who choose to not be vaccinated should be protected against governmental action even though it is, essentially, speaking out against the desires of the Government.

Even though the Fifth Circuit Court of Appeals has published strong opinions in favor of continuing the stay, DOJ remains committed to pushing forward with the legal challenge of the stay. “Today’s decision is just the beginning of the process for review of this important standard. The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consideration of all the pending cases for further review.”

It is suspected by many that this case, or a similar case regarding the ETS, will reach the U.S. Supreme Court for a final decision.

In the meantime, OSHA seems to have succumbed to the pressure of the suits and of public backlash against mandating vaccines. Even before the opinion by the Fifth Circuit Court of Appeals, which was made public on November 16, OSHA posted on its website on November 15 that it was suspending action on the ETS.

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Hailing from the Great State of Texas, South Side Matt monitors government for compliance with the Constitutional values that founded the United States, and works to maintain liberty for all in that spirit. His articles focus on furthering this cause, but also occasionally go "off track" into lighter topics such as cooking, general life and others.

Fort Worth, TX
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