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The Biden administration announced Tuesday it is withdrawing an emergency order mandating large employers vaccinate or regularly test their workers for COVID-19, but instead will be pushing for a permanent rule.
The Occupational Safety and Health Administration (OSHA) will formally withdraw the order on Wednesday, according to a draft of the memo to be published in the Federal Register. The agency is not dropping the rule entirely, however, planning to keep the order as a “proposed rule.” The original order would have impacted some 85 million Americans.
“OSHA is withdrawing the November 5, 2021, emergency temporary standard (ETS) which was issued to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID–19 by strongly encouraging vaccination,” the memo said. The agency continued to pressure companies to enact their own forced vaccination and testing policies.
“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3),” the memo said, signaling the agency’s intent to revise and remake the rule.
“OSHA is evaluating the record and the evolving course of the pandemic. OSHA has made no determinations at this time about when or if it will finalize a Vaccination and Testing rule. The agency intends to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards,” a spokesperson for the Labor Department added.
The Supreme Court ruled on January 13 to stay President Joe Biden’s order at least until the Sixth Circuit, which was picked to consolidate numerous legal challenges to the rule from across the country, can reach a decision on the case. The Daily Wire filed the first lawsuit in the Sixth Circuit hours after the order was released on November 4 and appealed the case to the Supreme Court the next month following the Sixth Circuit’s decision to lift a stay on the OSHA order.
“At question here isn’t whether or not the government has the right to enforce rules on its own employees. It’s whether or not unelected bureaucrats at OSHA have the right to coerce businesses into forcing PRIVATE employees to follow rules the government never had the right to impose in the first place,” Daily Wire CEO Jeremy Boreing said at the time. “At the end of the day, the government has the POWER to make us all comply, but they do not have the RIGHT to make us all comply. That’s why we must keep fighting.”
The Supreme Court’s decision to hear oral arguments in the case was rare and emphasizes the sweeping impact Biden’s order could have if implemented. The last time the Supreme Court granted a motion to hear oral arguments over a stay was in 1970 in the case of Citizens to Preserve Overton Park v. Volpe. Sixth Circuit Chief Judge Jeffrey Sutton pointed out in a December dissent that the scope of Biden’s vaccine mandate is unprecedented in the history of the United States. Sutton wrote:
It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end. It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift. Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The [Occupational Safety and Health Act] does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.
This article has been updated to include a statement from the U.S. Labor Department.