Workers’ lives at stake, OSHA says in defense of vaccine mandate
In its response to a conservative federal appeals court's order to temporarily halt the Biden administration's COVID-19 vaccine mandate for businesses with 100 or more employees, the Occupational Safety and Health Administration (OSHA) argued on Monday that the dispute was literally about life and death and that the workplace rules should be allowed to proceed.
The conservative Louisiana-based 5th U.S. Circuit Court of Appeals imposed the emergency stay this weekend from the requirements by OSHA—called an emergency temporary standard (ETS)—that those employees be vaccinated by Jan. 4 or face mask requirements and weekly tests.
The 5th U.S. Circuit order on Nov. 6 cited "grave statutory and constitutional issues." But OSHA argued to the court Monday that its halt to the ETS "would likely cost dozens or even hundreds of lives per day. Petitioners' asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds."
"Staying this [ETS] would endanger many thousands of people," inside the workplace and outside among family and friends potentially exposed by infected workers, OSHA also argues in its filing.
The petitioners, who sued in a separate court, the St. Louis-based 8th Circuit Court of Appeals, have until the end of the day Tuesday to respond to OSHA's counterclaims.
The petitioners include 11 states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming—plus a small Kansas City, Missouri-area trailer manufacturer, Doolittle Trailer Manufacturing, and an assortment of religious organizations. At least 27 attorneys general, mostly Republicans, sued in various jurisdictions to halt the vaccine mandates.
The U.S. Justice Department, meanwhile, also asked Monday for the various challenges to be consolidated under the umbrella of a single federal court chosen randomly on Nov. 16, the Associated Press reported. The Justice Department said in filings on Monday that it would vigorously defend the vaccine mandate. Also, on Nov. 8, the White House told businesses to proceed with following the mandate, despite the pause ordered by the 5th U.S. Circuit.
Worried about the mandate's impact on the truck driver shortage, the trucking industry is watching the legal challenges with interest. American Trucking Associations (ATA) asserted last week—with U.S. Department of Labor backing from Labor Secretary Marty Walsh—that the mandate does not apply to professional drivers since they are mostly isolated to their cabs to perform their jobs. The federal mandate would apply to other industry employees exposed to co-workers such as fleet office employees and maintenance shop workers.
"We continue to believe OSHA is using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employees that fails to factor in actual risks," ATA said in a Nov. 5 new release. "We are weighing all options of recourse to ensure every segment of our industry's workforce is shielded from the unintended consequences of this misguided mandate."
Under the disputed OSHA rulemaking, if individuals choose not to be vaccinated, they must be tested for COVID-19 weekly or within seven days before returning to work, with employers not mandated to pay for the testing. By Jan. 4, employers must ensure employees are vaccinated or receive a weekly negative test.
According to OSHA, exempt employees include:
- Those who don't report to workplaces where others are present.
- Those who work from home.
- Those who work exclusively outdoors.
Employers also must keep records for each employee, including the vaccination status of each employee and acceptable proof of vaccination. Employers are responsible for providing paid time off (up to four hours) and subsequent sick days after the vaccination, as the shot may cause common side effects such as fatigue, headaches, muscle pain, chills, fever, and nausea.
This article originally appeared on FleetOwner.com and is still developing.
