The ban on Biden's federal OSHA vaccine mandate rules will remain here in Kentucky, Ohio, and Tennessee after the 6th Circuit upheld a lower court ruling blocking employer vaccine mandate rules.
A federal appeals court has declined to lift a ban in three states on President Joe Biden’s COVID-19 vaccine mandate for workers who contract with the federal government.
The ruling comes after a nationwide ban on the mandate for federal contractors was imposed by a federal judge in Georgia last month.
A judge in Louisville, Kentucky, blocked the Biden rule in November for that state and two others: Tennessee and Ohio.
A panel of the Sixth Circuit U.S. Court of Appeals in Cincinnati upheld the injunction for the three states in a 2-1 ruling Wednesday.
“This ensures, while the case continues to proceed, that federal contractors in Kentucky aren’t subject to the Biden Administration’s unlawful mandate,” Kentucky Attorney General Daniel Cameron, a Republican who filed the suit challenging the mandate, said in an emailed statement Thursday. Cameron said in a release last year that federal contractors accounted for about one-fifth of the country’s labor force and $9 billion in contracts in 2021.
This was largely expected, as two Trump-appointed judges agreed with KY GOP AG Cameron that the mandates were unconstitutional.
The US Supreme Court will hear oral arguments tomorrow on the OSHA vaccine mandate rules.
In the midst of the latest surge in omicron COVID-19 cases, the U.S. Supreme Court will hear arguments Friday on whether the Biden administration can force private-sector firms to vaccinate or test tens of millions of employees.
The court is expected to make a decision swiftly that could freeze the vax-or-test mandates on businesses with more than 100 workers — and the threat of fines — or let the Biden plan be implemented, legal experts say. The Occupational Safety and Health Administration, or OSHA, which regulates workplace safety, has said it could begin fining businesses that fail to comply with the mandates on Jan. 10.
Employers “are waiting to see the outcome in the courts,” Wendell Young IV, president of the United Food and Commercial Workers Local 1776, which represents 35,000 Pennsylvania union members, said last week.
John S. Ho, co-chair of OSHA-Workplace Safety Practice at Cozen O’Connor, said that companies should be developing a “roster of vaccination status” of employees to show OSHA “good faith” in complying with the mandates.
“You should have that roster in place by Jan. 10,” he said. But Ho also is advising companies to take a “wait-and-see approach” on implementing the vaccination mandates that could lead some employees to quit.
A firm can be fined $13,600 per violation. OSHA is expected to mostly enforce the mandate through employee complaints. “It’s a politically charged issue. There is no way to avoid that,” Ho said.
The Biden administration says the emergency rules could save the lives of 6,500 workers and prevent 250,000 hospitalizations in the next six months as COVID-19 presents a “grave danger” to employees where they work. The Inquirer estimates that 1.8 million Philly-area workers fall under the mandates. Nationally, two out of three employers fall under it, representing about 80 million workers.
Firms, business trade associations, and 27 states say that the Biden administration has exceeded its authority at the workplace safety agency with the mandates that appear designed to boost vaccination rates and that many workers remain unpersuaded in vaccine benefits.
The case has made it to the U.S. Supreme Court in lightning speed. OSHA announced the mandates in early November and they were immediately challenged in court. On Nov. 12, the appeals court in New Orleans stayed, or froze, the mandates, saying that they were “staggeringly overbroad.” The ruling added that they raised issues of the government’s “virtually unlimited power to control individual conduct under the guise of a workplace regulation.”
Meanwhile, mandate cases filed nationwide were consolidated in the appeals court in Cincinnati. A panel of judges there lifted the stay on Dec. 17. “COVID has continued to spread, mutate, kill and block the safe return of American workers to jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve,” the court said in its decision.
So while the nationwide ban has been stayed, the 6th Circuit ban remains in place for Ohio, Kentucky and Tennessee. We'll see what the Roberts Court has to say, but my guess is that the vaccine mandate will not survive, and that a real danger remains that a broad ruling against executive branch regulatory agencies like OSHA could suddenly cripple the American workplace nationwide.
More tomorrow.
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