A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.
The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.
The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”
“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, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.
“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.
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.”
She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.
The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.
The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.
Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”
Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.
“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.
See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.
Said another way:
When the Fifth Circuit halted OSHA’s vaccine-or-test rule, many people noted its remarkable claims about the facts and law.
It looks like the Sixth Circuit… had a similar reaction.
— Matthew Segal (@segalmr) 12:20 PM – 18 December 2021
Said another way:
I don’t think the CA6 is trying to embarrass the CA5.
But the CA5 got some basic stuff wrong, and it’s worth asking how that happened.
— Matthew Segal (@segalmr) 2:53 PM – 18 December 2021
Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.