Monday, November 8, 2021

OSHA vaccine mandate challenges incoming!

Not official use.
A number of legal actions have already been filed trying to strike down OSHA's vaccine mandate. The first response came from the Fifth Circuit, which issued an emergency stay citing the petitioners' belief that there are "grave statutory and constitutional issues." An unusual statutory provision (29 U.S.C. §655) allows parties "adversely impacted by [the] standard" to seek judicial review directly at the Circuit Court of Appeals where they reside. Based on commentary I've read, the multiple cases will be consolidated into one action and assigned to a circuit based on lottery. 

What does all of this mean for employers? Right now... nothing really. It's an emergency stay that will be temporary. Presumably, we'll see a consolidation and whichever court gets the case will make a ruling that matters (although even then, we have the potential for SCOTUS review). Some employers may roll the dice and hope for a favorable ruling, but I'd hate to bet on that outcome and be wrong!

To get a flavor for the arguments in the Fifth Circuit case, check out the Petitioners' Emergency Motion to Stay Enforcement Pending Review and Expedite Review. You'll note that the focus is on OSHA's authority to mandate vaccines pursuant to the statute - the focus is not on individual liberty. We'll probably see some arguments regarding individual freedom to self-determination on health and medical issues, but I doubt that kind of "substantive due process" argument will win the day. The statutory authority arguments appear to be much stronger. 

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