WASHINGTON — A federal appeals court panel on Dec. 17 allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move forward, reversing a stay on the requirement, reported the Associated Press. While the deadline of the Vaccine Mandate Emergency Temporary Standard (ETS) from the U.S. Occupational Safety and Health Administration (OSHA) technically remains Jan. 4, it will not be enforced until Jan. 10.
The 2-to-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a judge in the U.S. Court of Appeals for the 5th Circuit in New Orleans that had paused the mandate nationwide.
The vaccine mandate applies to companies with 100 or more employees and will affect approximately 84 million U.S. workers. Employees who are not fully vaccinated would have to wear face masks and be subject to weekly COVID tests. There would be exceptions, including for those who work outdoors or only at home.
The ETS from OSHA was scheduled to take effect Jan. 4; however, “to account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS,” the agency said in a notice posted on its website. “To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Some state attorneys general said they would appeal the latest decision to the U.S. Supreme Court, according to the report. Twenty-seven states joined with associations including the National Association of Convenience Stores (NACS) and others to push back against the requirement when OSHA published the rules in early November. They argued the agency was not authorized to make the emergency rule, in part because the coronavirus is a general health risk and not one faced only by employees at work.
The panel’s majority disagreed. “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons said in her majority opinion. “No virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace.”
“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she said.
Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
In her dissent, Judge Joan Larsen argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”
The National Retail Federation issued a statement expressing its disappointment with the decision. “NRF will consider additional legal options,” said NRF Senior Vice President of Government Relations David French. “We will also continue to prepare our members to comply with this onerous mandate. NRF has long maintained that OSHA, in promulgating its Vaccine Mandate Emergency Temporary Standard, exceeded the authority granted to it by Congress in 1970 and crafted a rule that is infeasible for employers to implement during the critical holiday season. NRF urges the Biden Administration to delay the ETS’s implementation timeline. We can work together to find viable ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
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