The Biden Administration Is Asking an Appeals Court to Lift the Order Blocking OSHA's Vaccine Mandate
Added 11-23-21 08:21:02pm EST - “The Biden administration today asked a federal appeals court to dissolve the stay blocking implementation of its vaccine mandate for private employers,” - Reason.com
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Jacob Sullum | 11.23.2021 7:20 PM
The Biden administration today asked a federal appeals court to dissolve the stay blocking implementation of its vaccine mandate for private employers, warning that any delay in enforcing the rule "would likely cost many lives a day." In an emergency motion filed with the U.S. Court of Appeals for the 6th Circuit, the government's lawyers say there is no merit to the statutory or constitutional arguments against the mandate, which demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly testing.
The Occupational Safety and Health Administration (OSHA) published that "emergency temporary standard" (ETS) on November 5. The U.S. Court of Appeals for the 5th Circuit temporarily blocked it the following day, saying it raised "grave statutory and constitutional issues." The 5th Circuit extended its stay on November 12, saying the ETS is "fatally flawed" because it "grossly exceeds OSHA's statutory authority." Last week, various challenges to the mandate, including the 5th Circuit cases, were consolidated and assigned by lottery to the 6th Circuit, which the government is now asking to override the other court's order.
The ETS option, which OSHA rarely uses, allows the agency to circumvent the usual rule making process, which typically takes years, by imposing regulations that take effect immediately upon publication. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger."
The 5th Circuit said OSHA had failed to satisfy those statutory requirements. It added that the mandate "raises serious constitutional concerns." The government says the appeals court was wrong on both counts.
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