A federal appeals court has extended its suspension of the Biden administration’s mandate that all companies with at least 100 employees require each one to either be vaccinated against COVID-19 or submit to weekly tests for the viral disease.
On a practical basis, the stay will have little immediate effect on restaurants and most private-sector employers, since their full compliance is not required until Jan. 5.
Nor does it declare the mandate—technically an emergency order from the Occupational Safety and Health Administration (OSHA)—a violation of the U.S. Constitution and hence void. Rather, it notes the companies that petitioned the court for a stay have enough at stake to be spared the difficulties of adoption until the constitutionality can be established or disproved.
A restaurant operator, Gulf Coast Restaurant Group, was one of the petitioners.
A temporary stay was issued immediately after the U.S. Department of Labor aired OSHA’s Emergency Technical Standard. The U.S. Court of Appeals for the Fifth District, located in Louisiana, said at that time that it would hold expedited deliberations to determine if the suspension should be lifted or extended.
A panel of three judges unanimously decided Friday that OSHA’s requirement be held off until the courts can address the thornier issues of constitutionality and whether the directive exceeded OSHA’s regulatory authority.
Although the decision did not rule on the question of constitutionality, it did state that it was “dubious” the mandate would pass “constitutional muster.” It also described the requirement as “staggeringly overbroad.”
The decision provided a preview of opponents’ likely arguments that OSHA’s emergency order was not consistent with its authority to protect America’s workers at their workplaces. The appeals judges agreed that the mandate is a rare instance of a regulatory requirement being both too sweeping and simultaneously too narrow in its focus.
Their decision noted that the mandate applies uniformly to any business with at least 100 employees, regardless of the working conditions of those workers and what protocols would be most effective in protecting them. The ruling noted that the requirement applies equally to a night watchman working solely in an otherwise empty building, to a laborer working shoulder to shoulder with co-workers in a crowded warehouse.
‘The Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees,” the decision reads.
Simultaneously, the opinion states, the vaccinate-or-test mandate only applies to companies employing 100 or more people. How, it asks, can the situation be adjudged a true workplace emergency if the 99 workers of a nonqualifying company are left unprotected?
It also notes that an Emergency Temporary Standard usually applies to an acute, immediate danger, such as the presence of a poisonous substance at a job site. The pandemic has been an issue for the nation for nearly two years, and even OSHA took two months to draft the rules for what it describes an immediate need for action, the opinion reads.
The Department of Justice countered in its defense that suspending the requirement will lead to widespread deaths of workers who contract COVID-19 on the job.
All sides have indicated they expect more legal challenges and defenses of the emergency rule to arise in coming weeks. But the White House has insisted that the mandate will stick and that employers should not delay in meeting the requirement.
“People should not wait,” White House spokesperson Karine Jean-Pierre said at a press briefing last Monday.
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