The US 5th District Court of Appeals blocked President
In their order, Judges Edith Jones, Stuart Kyle Duncan and Kurt Engelhardt wrote, ‘Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.’ A stay is a legal term meaning that a proceeding must be halted until a later date.
The judges gave the White House until 5 p.m. on November 8 to respond, at which the petitioners would have until the following day to apply for a permanent injunction.
The mandate, which requires private companies with 100 or more employees to impose vaccine mandates on their workers by January 4, was officially announced by the Occupational Safety and Health Administration (OSHA) on Thursday – immediately leading to a flurry of lawsuits from Republican states and entities.
The US 5th District Court of Appeals issued a stay against Biden’s latest vaccine mandate
Biden had issued a vaccine mandate for all employers with 100 or more workers to issue their own vaccine mandate by January 4
Saturday’s court order came in response to a joint petition from several businesses, advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina and Utah. The rule is also facing separate legal challenges before other courts.
Several Republicans announced legal action on Thursday against Biden’s vaccine mandate after details were released of the new rule affecting more than 84 million workers at private companies and federal contractors.
Among those leading the wave in standing against he mandate was Texas Attorney General Ken Paxton, who called the halt a victory.
‘The fight is not over and I will never stop resisting this Admin’s unconstitutional overreach,’ Paxton wrote on Twitter.
Along with the petition from the Texas and the other four states, Missouri, Alaska, Arizona, Arkansas, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming, Ohio and Tennessee have all filed lawsuits against Biden’s vaccine mandate.
The Republican National Committee is also suing Biden.
Florida Governor Ron DeSantis announced Thursday that Florida would also join a lawsuit with Georgia, Alabama and private plaintiffs seeking to nullify Biden’s rule.
‘We’ve got to stand up,’ the Republican Trump ally said during a press conference in Tallahassee. ‘We’ve got to stand up for the constitutional order.’
Texas Attorney General Ken Paxton, center, was among five Republican leaders who presented the petition to halt Biden’s vaccine mandate
Florida Governor Ron DeSantis said Florida, Georgia and Alabama will also file their own lawsuits against Biden’s vaccine mandate
President Biden arrived in Delaware on Saturday when he learned about the block
The White House declined to comment on the ruling, and referred questions to the Labor Department, where spokespeople did not immediately respond to a request for comment.
Earlier this week, The White House said it was confident that it could beat any Republican challenges to its new workplace vaccine mandate and claimed Thursday that the
‘The question that we always have is and that we ask to the Republicans is why are they getting in the way?’ Deputy Press Secretary Karine Jean-Pierre said during Thursday’s White House press briefing.
‘Why are they getting in the way of trying to protect and save lives? That’s all we’re trying to do,’ she added.
Jean-Pierre said the White House is ‘pretty confident’ the new Occupational Safety and Health Administration rules imposing compulsory vaccines on private companies will hold up in court against a slew of GOP lawsuits currently being filed.
‘The administration clearly has the authority to protect workers and actions announced by the president are designed to save lives and stop the spread of COVID,’ Jean-Pierre said.
The debate over the mandate comes as infection rates in the US continue to drop.
On Friday, the nation reported less than 97,000 new daily cases and about 2,300 deaths, according to Johns Hopkins University.
About 59 per cent of eligible Americans are fully vaccinated against COVID, and more than 78 per cent have gotten at least one jab.
The new rule comes as there are already concerns over impacts the mandates could have on the already stunted U.S. economy, which is experiencing a worker shortage and supply chain issues ahead of the holiday season.
‘If you’re asking if we think the rules impact supply chain, the answer is no, we don’t think that it will,’ Jean-Pierre said at Thursday’s briefing.
Missouri’s Attorney General Eric Schmitt and Arizona’s Attorney General Mark Brnovich both announced Thursday their intentions to file lawsuits against the Biden administration on Friday.
‘Our office will file a lawsuit tomorrow morning once OSHA rules are officially published that will mandate COVID-19 vaccine requirements for private employers with more than 100 or more employees,’ Brnovich tweeted. ‘Arizona will again take action to protect hard-working taxpayers.’
Schmitt, who is running for U.S. Senate in Missouri, said: ‘I’ve been in discussions with businesses in Missouri, including a trailer manufacturing company in mid-Missouri, who say that this vaccine mandate will crush their business.’
‘We will be on file first thing [Friday] morning to halt this illegal, unconstitutional attempt by the Biden administration and the federal government to impose their will on thousands of Missouri businesses and millions of Missourians,’ he added.
The Republican Attorney Generals from Kentucky, Ohio and Tennessee also filed a joint lawsuit against Biden’s new ‘unconstitutional’ vaccine mandates for federal contractors on Thursday.
‘The federal government contracts with private businesses and public agencies in states across the country, and the Commonwealth is no exception, meaning that numerous Kentuckians are subject to the Biden Administration’s unconstitutional vaccination requirement,’ Kentucky AG Daniel Cameron stated in a press release on the lawsuit.
‘We are taking the issue of federal overreach seriously and will protect the livelihoods of countless Kentuckians and Kentucky businesses from overbroad mandates,’ he added.
Both the private and federal contractor mandates from OSHA require that workers get the final – or only – dose of the COVID-19 vaccine by January 4, 2022. After the deadline, noncompliant companies can face fines up to $13,653 per unvaccinated worker.
The new rule also requires workers to get weekly testing if they do not get vaccinated, and the stringent testing regimes may need to be paid for out of employees’ pockets.
RNC Chairwoman Ronna McDaniel wrote in her statement announcing legal action on Thursday: ‘This mandate is yet another attack on frontline workers, first responders, small businesses, and the rights of the American people.’
She also noted that by taking months to craft the rule and shifting the deadline to after the holidays to gain political capital, that Biden has negated justification for it to be considered an emergency to implement the mandate.
White House Deputy Press Secretary Karine Jean-Pierre said Thursday Republicans are ‘getting in the way of saving lives’ by fighting back against Joe Biden’s new vaccine mandates
Jean-Pierre defended the consistent deadline, however, claiming that the administration wanted the avoid any confusion and ‘level the playing field’ for private companies and federal contractors.
OSHA staffers will be doing random inspections to check if businesses are complying and employees could have to pay for their own tests out of pocket. The agency is using emergency orders that usually deal with workers exposed to ‘grave dangers’ to enforce the standards.
GOP lawmakers responded with fury and said some unvaccinated Americans were being forced to decide between putting food on the table or getting the shot, while retailers said the new rules will put an ‘unnecessary’ burden on businesses before the holiday season.
Red states are also likely to fight to stop the guidelines being put in place after the White House said they ‘preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.’
The stringent new rules have been put in place amid widespread backlash to mandates, including bids from furious Republicans who are trying to overturn it to keep people in their jobs amid fears of staff shortages and first responders being turned away from work in major cities.
On Wednesday San Francisco announced that children aged 5-11 will be forced to prove they’ve had the shot to enter restaurants and entertainment venues. The new rule comes just a day after the Centers for Disease Control and Prevention approved the Pfizer vaccine for children in that age group.
In a statement on Thursday, President Biden said vaccination requirements are ‘good for the economy’ and they will help send people back to work.
‘For our country, the choice is simple: get more people vaccinated, or prolong this pandemic and its impact on our country. The virus will not go away by itself, or because we wish it away: we have to act. Vaccination is the single best pathway out of this pandemic.’
Legal experts say it’s ‘fundamentally undemocratic’ and unconstitutional for Biden to use emergency orders meant for asbestos to compel workers to get the vaccine
As part of the White House’s aggressive new approach to fighting the pandemic, the president directed the Labor Department’s regulatory agency, the Occupational Safety and Health Administration (OSHA), to mandate all businesses with at least 100 employees either require all of them to be vaccinated or submit to weekly COVID testing.
The agency has the authority to issue an ’emergency temporary standard’ (ETS) if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it.
A Congressional report updated in July notes how rarely emergency standards are used. Before the COVID pandemic the last OSHA ETS was struck down in 1983, when a federal court said the agency failed to support its claim that asbestos exposure in the workplace needed to be further reduced due to a significant adverse impact on employees’ health.
OSHA issued an ETS in June to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that’s not possible.
It also requires relevant companies to give employees paid time off to get vaccinated or paid leave in the event they test positive.
And while the idea might be ‘well-intentioned,’ a Friday morning op-ed claims, Biden also risks ‘shredding the social fabric’ of an already divided country by stretching the bounds of constitutionality.
‘The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,’ Republican commentator Robby Soave wrote in the New York Times.
Duke University senior lecturing fellow Dan Bowling pointed out to McClatchy News that OSHA’s investigative and enforcement capabilities are relatively weak compared to the IRS or Securities and Exchange Commission.
‘If somebody falls off a ladder that was broken in a place of business and breaks his or her leg, that’s pretty easy to prove employer liability. The employer would have to report the accident under OSHA,’ Bowling said. ‘If someone catches COVID who works somewhere that doesn’t follow the vaccine mandate, how do you prove that?’
Among the parties challenging the strict measure in court are the Republican National Committee, as well as the governors of at least nine states.
South Dakota Governor Kristi Noem, who’s resisted implementing a mask mandate even when its COVID hospitalizations and deaths were among the highest in the country, promised to see Biden ‘in court.’
Georgia’s Gov. Brian Kemp vowed to ‘pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach.’
But in states like Montana, Texas and Florida, which all said they intend to sue, OSHA’s ETS rules predate similar existing state guidelines – which would make a legal case more of an uphill battle than states that created their own OSHA-approved regulatory bodies after the fact.
What is OSHA?
The Occupational Safety and Health Administration was created by President Richard Nixon under the Occupational Safety and Health Act of 1970.
OSHA has jurisdiction over most private and public workplaces across the country, but some states have their own OSHA-approved regulatory agencies.
The agency regulates health and safety standards in the workplace. To enforce that it’s able to conduct unannounced inspections ensuring those standards are met.
Since it was created workplace deaths fell dramatically by nearly 63 percent, according to OSHA. An estimated 14,000 workers – or 38 per day – were killed on the job in 1970. But 2018 the number fell to 5,250, despite a doubling of the total US workforce.
OSHA’s process for enacting new workplace standards includes consulting a number of relevant advisory committees linked to the Labor and Heath and Human Services Departments, as well as consulting business owners and allowing a window for public input, at least 30 days but ‘usually 60 days or more.’
Businesses in states with their own OSHA-approved agencies can ask for a ‘variance’ in the rule if they can’t comply by the effective date.
If the state is under federal OSHA jurisdiction then the agency will have to work with the state to determine if the exception can be granted
What is an Emergency Temporary Standard (ETS)?
An ETS allows OSHA to bypass the consultation process and public input window if it determines ‘workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.’
Emergency standards can take effect immediately but only stay in effect until replaced by a permanent standard.
That proposed permanent standard must go through the regular bureaucratic channels and be decided upon within six months.
During that time the temporary rule can be challenged in an appropriate federal court.
OSHA can issue ‘temporary variance’ rules to employers who prove they can’t comply with a regulation in time, but they have to demonstrate they are taking all the necessary and possible steps to protect workers, and show a roadmap toward compliance.
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