Statement from AE/MSSC President
The U.S. Court of Appeals for the Fifth Circuit in New Orleans put a hold on plans by the Occupational Safety and Health Administration, or OSHA, to implement a workplace vaccine mandate and issued a critical 22 page opinion that states this Emergency Temporary Standard (ETS) is “fatally flawed on its own terms.”
The US Department of Labor, which oversees OSHA has suspended activities related to the implementation or enforcement of the ETS pending future developments in the litigation.
Given these facts and additionally that the law in Montana is clear the employers cannot discriminate in terms of vaccine status, I see very little reason for employers to prepare for any implementation of this Emergency Vaccine Standard, but check with your legal counsel if you are unsure.
My opinion is that it is clear that this ETS exceeds OSHA’s authority. Here is a quick summary of a few items that make me believe this has no chance of being upheld in court. I would be surprised if the Biden administration doesn’t drop the case.
- The ETS doesn’t address a workplace hazard. Rather, it deals with a threat that exists everywhere in the world.
- The ETS doesn’t address a “grave” danger in the workplace.
- The ETS isn’t sufficiently tailored to address workplace threats.
- The coronavirus is not a toxic substance.
- The ETS does not substantially influence interstate commerce.
- The ETS violates the Tenth Amendment which protects individuals States power and rights.
- OSHA exceeded its statutory authority;
- OSHA did not follow the correct procedures for creating an emergency temporary standard
In regards to Executive Order for Federal Contractors (EO 14042) Vaccine Mandate, the Contractors have been given a little breathing room, when President Biden issued a Fact Sheet on November 4, 2021, announcing that the December 8, 2021 COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022. This EO is also under lawsuit but we don’t have any formal ruling at this time, so check with your legal counsel if you are a Federal Contractor that falls under this EO 14042. Montana Attorney General Knudsen and attorneys general from Alaska, Arkansas, Iowa, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are part of the lawsuit.
See this article for some guidance in additional to checking with your legal counsel.
Greg Roadifer, MBA, SHRM-SCP
President, Associated Employers
Executive Director, Montana Safety Services