A federal appeals court ruled on Friday that the Biden administration’s vaccine mandate for private companies with 100 or more employees can continue. The mandate, issued by the Occupational Safety and Health Administration (OSHA) through an Emergency Temporary Stanard (ETS) is set to go into effect on Jan. 4, 2022.
On Nov. 12, the Fifth Circuit Court of Appeals ruled that OSHA could “take no steps to implement or enforce the Mandate until further court order,” noting that the mandate exposes the petitioners “to severe financial risk” and “threatens to decimate their workforces.”
Obama-appointed Judge Jane Branstetter Stranch, writing for the majority, disagreed, opining that the ETS is necessary because “the ‘old normal’ is not going to return.”
“The costs of delaying implementation of the [mandate] are comparatively high,” Stranch added. “Fundamentally, the [mandate] is an important step in curtailing the transmission of a deadly virus.”
Stranch wrote that the ETS is “not an enormous expansion” of OSHA’s regulatory authority. “Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace,” she said.
The 57-page ruling dismissed the plaintiffs’ claim that the ETS could cause irreparable harm, noting that employers and employees will be permitted to utilize test-and-mask schemes, “which are entirely temporary in nature and do not create irreparable injuries,” undercutting claims of irreparable injury.
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If the rule goes into effect, employees of companies with 100 or more employees will be required to either show proof of vaccination or submit to weekly testing and a workplace mask mandate.
“By contrast, the costs of delaying implementation of the ETS are comparatively high,” Stranch wrote. “Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”
She didn’t mention that it was politicians and health bureaucrats who forced businesses to close, not a virus that has no power to issue such orders.
The judge quoted OSHA, which claims that the ETS will save 6,500 worker lives and prevent 250,000 hospitalizations over a period of six months.
“A stay would risk compromising these numbers, indisputably a significant injury to the public,” Stranch said. “The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy, particularly here where Petitioners have not shown a likelihood of success on the merits.”
The judge did not address the fact that millions of American workers who took the COVID-19 vaccine (and the booster)—many under duress from their employers and government officials—have since been re-infected with the virus and are themselves spreading the virus, presumably in their workplaces.
It’s very likely this case will be further adjudicated at the Supreme Court. In the meantime, many employers are already beginning to implement the provisions of the ETS—and many employees are either submitting (fearing for their jobs) or leaving their professions for greener and less-Stalin-like pastures.
Read the entire 57-page ruling if you’ve got the stomach for it.
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