Court stays the Biden OSHA COVID vaccine mandate — an analysis

OSHA COVID-19 vaccine mandate

This article about the Court of Appeals stay of President Biden’s OSHA COVID vaccine mandate was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On November 6, 2021, the US Fifth Circuit Court of Appeals stayed President Biden’s Emergency Temporary Standard (ETS) – the emergency temporary standard by which OSHA required large employers to adopt a COVID-19 vaccine or test mandate – citing grave constitutional and statutory concerns.

On November 12, 2021, the Fifth Circuit published a decision keeping in place its stay and elaborating on the reasons. The decision is concerning — first, the legal analysis does not follow established law in several ways, and the innovations (or misapplications) are not well reasoned. Second, the decision suggests a lack of close reading of the Emergency Temporary Standard the decision is putting on hold. And third, and perhaps most concerning, the decision suggests the panel attributes little to no importance to halting COVID-19, or to the fact that over a thousand people in the United States are dying from COVID-19 every day, or to the fact that the ETS is estimated to save thousands of workers lives and prevent a quarter of a million hospitalizations, under conservative assumptions.

All of these give cause for concern if the Fifth Circuit is the one chosen under the lottery to hear the cases against the mandate. A panel that clearly ascribes little importance to protecting employees from COVID-19 is unlikely to consider the need for a mandate carefully. 

To be clear, the bar for putting out an ETS is high. Another panel may end up not upholding the ETS for not meeting that high bar, and that would be well within the lines of existing jurisprudence. But this decision isn’t it. 

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