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The Occupational Safety and Health Administration (OSHA) announced Wednesday morning it had temporarily stayed its vaccine mandate for employers of over 100 employees. To date, more than thirty lawsuits have been filed across the country, including the Daily Wire’s.
The move from the Biden Administration comes after the Fifth Circuit Court of Appeals, based in New Orleans, ordered a stay on the mandate two days after it was published. In a terse statement, the court wrote that the OSHA mandate had grave constitutional implications and that enforcement should wait until proper litigation could take place.
As the federal courts decided Tuesday by a rarely-used lottery system, further litigation was consolidated into the Sixth Circuit Court of Appeals, where Daily Wire was the first to file a legal challenge to the OSHA mandate. It allows for one court to hear the general grievances laid out by several lawsuits of the same nature. The “lottery” method usually involves product liability and antitrust cases. In this case, the Sixth Circuit won the lottery. Daily Wire, as the first to file in the Sixth Circuit, is currently being considered the lead plaintiff.
The arguments of the Daily Wire’s lawsuit, echoed by many of the other cases filed, maintain that the basis for OSHA’s order is unconstitutional on several considerations. First and foremost, vaccine mandates are traditionally reserved for the states. It has never been in the federal government’s jurisdiction to implement sweeping mandatory vaccine regulations. Second, if it were in their power, as with most items in U.S. law, Congress would have had to delegate that power to OSHA through legislation. Lastly, in OSHA’s original publication, they maintain the order is an “emergency” rule. In other words, they believe they could temporarily, in the event of an emergency, have the power to mandate vaccines without going through the normal rulemaking process, which considers public comments.
There are two reasons the “emergency” justification falters in light of Covid-19. One, historically, such “emergency mandates” are more narrow and never entail sweeping economic and legislative implications. Two, with a waning pandemic and several therapeutics or alternative methods of treating Covid-19 available, and with the rule delaying its own enforcement for two months, the asserted “emergency” nature of the rule is unclear.
An additional argument put forth is that the mandate changes the relationship between OSHA and the employees it was founded to protect. The regulatory agency primarily exists to protect workers from externalities, toxic substances, employer negligence, etc. In the published mandate, the agency treats the workers themselves as toxic substances, which could, in their view, harm other workers. Such changes, in the eyes of those suing over the mandate, again, are overly broad and difficult to regulate. They only further support the argument that OSHA overstepped its bounds in ordering employers to require vaccination.
The Biden administration has not yet filed for any motion to lift the order for a stay on the mandate, although they have publicly, contrary to the Fifth Circuit’s temporary orders, told employers to keep preparing for an execution of the rule. It’s reasonable to assume they’ll file for a motion soon.
With this unusual circuit-lottery procedure well underway, the OSHA vaccine mandate’s legality is likely to be decided soon. The Fifth Circuit was unusually quick in its order. The Daily Wire and others have moved in the 6th Circuit to have the entire court hear these cases en banc, bypassing the normal three-judge panel process in order to get a definitive ruling from the 6th Circuit. Litigation would most likely continue to the Supreme Court, appealed by whichever side loses. As of now, employers, if they aren’t healthcare or government contractors, are no longer required by the federal government to mandate employee vaccination. The Daily Wire continues to stand up for the freedom of its employees from government overreach and encourages other employers to do the same.
Harmeet Dhillon is a nationally recognized lawyer, trusted boardroom advisor, and passionate advocate for individual, corporate and institutional clients across numerous industries and walks of life. Her focus is in commercial litigation, employment law, First Amendment rights, and election law matters.