New Statement from AE/MSSC President
A federal judge blocked the last of the Biden administration’s COVID-19 vaccine mandates for businesses, saying the government exceeded its authority with a requirement that millions of employees of federal contractors be inoculated.
Further, 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.
Here is a quick summary of a few items that make me believe the OSHA ETS has little chance of being upheld in court.
- 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
Here is the latest regarding the OSHA case. The 6th circuit dissolved the Stay but the Supreme court has asked the Biden Administration to respond to the court filings against this case by December 30th, 2021. My best guess would be the Supreme Court will take some action in early January. FYI. It is illegal in Montana to discriminate against your employees in Montana based on vaccination statues, so check with your attorney before taking any action or implementing this OSHA emergency standard.
Greg Roadifer, MBA, SHRM-SCP
President, Associated Employers
Executive Director, Montana Safety Services