Appeals court keeps hold on vaccine mandate in place

The 5th U.S. Circuit Court of Appeals on Friday kept its earlier order in place that put a stop to the Biden administration’s COVID-19 vaccine mandate for businesses with 100 or more employees.

The mandate, put in place by the Occupational Safety and Health Administration (OSHA) and much maligned by the trucking industry as a threat to exacerbate the truck driver shortage and further disrupt the supply chain, also sits in other courts, where parties have sued to stop it. The dispute likely next heads to a randomly selected circuit court, where the cases will be consolidated for a predicted trip to the U.S. Supreme Court, which would have final say in the dispute.

For their part, the three judges of the conservative 5th U.S. Circuit wrote in their Nov. 12 ruling that OSHA “reasonably determined” under the Trump administration more than a year ago, in June 2020 at the height of the pandemic, that an emergency temporary standard (ETS) was not necessary. OSHA’s about-face earlier this month under a different administration raises “serious constitutional concern” and forces workers to choose between “their jobs and their jabs,” the panel of three judges of the 5th U.S. Circuit wrote in a scathing 22-page ruling.

OSHA argued earlier this week that the dispute was literally about life and death and that the workplace rules should be allowed to proceed. Halting 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," OSHA asserted in a counterclaim before the 5th U.S. Circuit.

A federal appeals court on Friday reaffirmed its earlier decision to freeze the Biden administration's vaccine mandate. https://t.co/g0nu3jiuNl

— CNN (@CNN) November 13, 2021

Later this week, other parties—including American Trucking Associations (ATA), three state trucking associations from Louisiana, Mississippi, Texas, and other groups with supply chain interests such as the National Retail Federation, the National Association of Convenience Stores, and the National Association of Wholesaler-Distributors—joined the battle with a lawsuit of their own in the 5th U.S. Circuit. ATA had learned earlier from the U.S. Department of Labor that the OSHA rules didn't apply to truck drivers who mostly work alone in their cabs. But the trucking industry includes many others, in fleet offices and maintenance shops, for example, who have close contact with their co-workers.

The OSHA ETS “arbitrarily picks winners and losers and puts employers in an untenable position of forcing workers to choose between working and their private medical decisions, which is something that cannot be allowed,” ATA’s president and CEO, Chris Spear, said in a statement Nov. 10 after ATA added to the pile of litigation following threats to do so for weeks.

“We told the administration that this mandate, given the nature of our industry and makeup of our workforce, could have devastating impacts on the supply chain and the economy and they have, unfortunately, chosen to move forward despite those warnings,” he said.

At least 27 attorneys general, mostly Republicans, have sued in various jurisdictions to halt the vaccine rules. Eleven of them—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— joined the fight in the St. Louis-based 8th Circuit Court of Appeals.

A lottery as soon as this Tuesday could determine which circuit court gets a consolidated hearing of the widening dispute. The 5th U.S. Circuit on Friday was unequivocal in its position.

Biden Vaccine Mandate Solves Some Problems for HR Chiefs — But Creates New Ones https://t.co/AOudANTqVC

— NBC4 Washington (@nbcwashington) November 13, 2021

"The mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat),” the three judges wrote.

For the U.S. Justice Department, which is representing OSHA, the matter is simply about protecting public health. For the Biden administration, it’s about ensuring as many people as possible receive the protection of the COVID-19 vaccines. All other concerns, they argue, are secondary.

Under the disputed OSHA rulemaking, if individuals choose not to be vaccinated, they must be tested for COVID-19 weekly or within seven days prior to 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 vaccination status 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.