Court Halts OSHA Covid Standard

As more than 1100 Americans continue to die every day from COVID-19, the Department of Labor delivered a brief pushing back against a temporary injunction blocking the recently issued OSHA Vax-or-Test mandate. DOL attorneys told  the New Orleans-based 5th Circuit Court of Appeals judges that the stay “would likely cost dozens or even hundreds of lives per day.”

Republican attorneys general in at least 26 states — most of which have Republican Governors — have challenged the OSHA emergency standard in five different U.S. appeals courts. The first requirements of the standard involving development of a policy and masking for non-vaccinated workers, come into effect on December 5. The vaccinate-or-test requirement comes into effect January 4.

Data shows a significantly higher COVID-related death rate in counties that voted for Trump in the 2020 election than those that voted for Biden. This is mainly due to the lower level of vaccinations among Republicans.

Attorneys for OSHA and the Labor Department, led by DOL Solicitor Seema Nanda, told the 5th Circuit judges

that the states, businesses and religious groups that requested the stay of the private-business mandate aren’t likely to succeed given earlier court rulings, federal law and “the considerable evidence that OSHA analyzed and discussed when issuing” the requirement.

“Nor have petitioners shown that their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations,” the filing added.

It pointed to the surge in infections caused by the delta variant of Covid-19, saying that voluntary safety measures “proved ineffective” so OSHA had to step in.

The White House also weighed in. Deputy Press Secretary Karine Jean-Pierre told employers “Do not wait to take actions that will keep your workplace safe.”

“The administration clearly has the authority to protect workers, and actions announced by the President are designed to save lives and stop the spread of COVID-19.”

Shut Down the Government?

Meanwhile, Texas Congressman Chip Roy called for shutting down the government if the Biden administration doesn’t withdraw the rule (and also stop using Big Bird to urge kids to get vaccinated.)

“We need Republicans to stand up and say we’re not gonna fund the government on Dec. 3 with a continuing resolution if these mandates stay in place,” he told “The Faulkner Focus” on Fox News.

“So I’m calling on my colleagues to stand strong and not fund the government that’s going to go do propaganda on our kids and put these unconstitutional mandates in place,” he added.

The Continuing Resolution that is currently providing government funding runs out on December 3.

What’s Next?

The lottery to decide which Appeals Court will make the ultimate decision on the constitutionality of the standard and whether to continue the injunction (assuming the 5th Circuit panel makes the injunction permanent) will be held November 16, according to the U.S. Department of Justice.

The ultimate destination is likely the Supreme Court:

David Vladeck, a professor of law at Georgetown University, said there’s a “high probability” that the case will end up before the Supreme Court.  “There are justices on the court who want to rein in the administrative state and this is a case in which those concerns are likely to come to the fore.”

More than 752,000 people have died in the U.S. from Covid, according to the Centers for Disease Control and Prevention.

12 thoughts on “Dept of Labor Fights Back to Protect Workers”
  1. Jordan, do you know how many people die every year from Obesity?
    According to WHO, in 2016, more than 2.8 million people died from being overweight/obese:,of%20being%20overweight%20or%20obese.
    Why is it that the only ‘solution’ that is talked about by yourself and others in government, is the COVID shots?
    It seems that Obesity is more of a ‘grave danger’ here.
    Wouldn’t you like to see OSHA now get to dictate someone’s ability to make a living based on their BMI?
    If this is all about keeping people healthy and safe, don’t you think obesity is where we need to start? Not only would people be forced to make healthier choices, it would cut down on the comorbidities that lead to COVID deaths.

    All of your blog posts point fingers at Trump and Republicans as being the problem here. I think you need to sit back, take a deep breath and take a look in the mirror and ask yourself if you truly believe what you’re preaching here. Honestly, it just sounds like a bunch of political talk.

    1. Obesity isn’t a substance or agent that’s toxic or physically harmful to employees. Try reading the OSH Act first before you cherry-pick stats and bring up worthless talking points.

      1. Hey Antonin,
        I’m making a bigger point here. OSHA and the US Government are trying to treat the symptoms of COVID while completely ignoring the underlying causes of why COVID causes some people to get sicker than others. A lot of that has to do with people’s underlying health issues.
        So before you criticize, maybe use your brain to think about this at a deeper level.

        1. There is more than enough death among workers who do not have significant comorbidities to easily justify a standard. And just because a worker has a comorbidity or is immunocompromised doesn’t exempt them from the right to a safe workplace. That way lies chaos.

          1. Jordan,
            Again, your word salad is amazing!

            This is a medical experiment on a scale the world has never witnessed. The fact that you demonize individuals who are hesitant to be a part of this experiment is disgraceful. You seem to be solely focused on COVID shots or Bust; that type of narrow minded view is exactly why the American people don’t trust you or anyone else in government.
            I’m looking forward to this going to SCOTUS

            1. Anthony. You’re wasting my time and anyone else who might be reading this. This is a place to discuss workplace safety and health based on facts. If you want to spout misinformation or conspiracy theories, go to Twitter. I will leave these comments up, but nothing anything else from you will be deleted. Good luck.

          2. Also, please elaborate on how the COVID shots are supposed to protect the workers with comorbidities or are immunocompromised in a workplace where everyone has had the shots.
            The last I checked, people who’ve had the jab can still transmit COVID as well as contract COVID.
            Seems that the larger issue is that the COVID shots really don’t provide the protection that was promised and/or expected.

  2. Obesity isn’t contagious. You can’t contract it from a co-worker or the public. And it’s the Republicans who are poiticizing masks and vaccines, not the Democrats. It’s Republicans who sue OSHA after every single standard, no matter how many lives they save. Unfortunately, the act of issuing regulatory protections — whether protecting workers, consumers or the environment — has become unnecessarily politicized. I’d suggest looking yourself in the mirror and asking why.

    1. Jordan,
      You’re a gem.
      You’re correct, obesity is not contagious, but you’re missing the bigger point here.
      You, OSHA, and the US Government are looking at how to treat the symptoms of COVID instead of the underlying causes of why COVID affects some people worse than others. A lot of that has to do with things like obesity.
      The COVID shots only address the symptoms of COVID; can we start having an honest and open dialogue about this disease or are you just aiming to give the US government all the power over the people of this country?

  3. We can not find employees to work as it is, without additional crap for them to follow. Why is the government requiring workers to follow this ETS written by people sitting in Washington, that have never worked in real life private sector without considering the real ramifications, The LEO’s, medical personnel and factory workers who do not want to be vaccinated must pay for their own testing, thus losing money to support their families. Why do we let people attend indoor stadium, basketball arenas and concert venues that are full of unmasked people who may or may not be vaccinated. Why is the government trying to implement this but ignoring exposures at football games, concerts and basketball games. The exposures in the workplace are small when compared to the 75,000 people at a concert, sweating, singing, jumping around in very close proximity to strangers. Out of the 1100 people who allegedly die a day from Covid, how many of them were infected at work, at a football game or at a concert. Know one knows.

    Is this really an emergency? Numbers are going down, 3 different vaccinations are available, a new pill to be taken after symptoms occur is showing amazing success How long will the temporary standard be in place? Why aren’t cigarettes’ and second hand smoke regulated in the workplace, how many people die each day from lung cancer caused by them. You mention Trump counties, what about the thousands of illegal immigrants streaming over the border that are put on planes and shipped across the US, without testing and vaccinations. That seems like a golden opportunity to vaccinate a large population that BIden has let cross our border unvetted, that will be housed in crowded conditions, with limited resources, without medical insurance & proper healthcare with limited funds and exposing US citizens to all sorts of diseases. Where are most of the illegal immigrants sent to? Trump areas. The liberals also lead are nation when they violate their own requirements, how many democratic people enact strict regulations and then are seen at weddings, restaurants and countries violating their own rules. The hypocrisy, unneeded standards and regulations that are impossible to follow and enforce. It looks like the liberal think tanks are trying to hide the immigration disaster with the ETS. Great job, maybe the government can actually try to control inflation, rising fuel prices and escalating crime rates in democratic strongholds, How many kids have been killed in Chicago by crime versus Covid?

    1. Jeff,
      It’s nice to see a fellow common-sense human on this blog!
      You make a fantastic point about the illegal immigrants; can’t wait to see Jordan’s response here. It’s sure to be a word salad that can feed the masses!

    2. Your make a few good points here, but mostly not.
      1. Regarding working in Washington, OSHA Is required to only issue standards that are economically or technologically feasible. They can’t just make shit up or they get overturned in court.
      2. Concerts and sports venues may indeed be hazardous, but they aren’t workplaces for the spectators and therefore don’t fall under OSHA’s jurisdiction. Read the preamble to the regulation; there is more than enough evidence of significant workplace transmission.
      4. Yes, there is still an emergency. Numbers may be going down, now — as they did last Spring, but transmission, hospitalizations and deaths are still at a very high level for the working age population. And, if there’s another variant, we’ll see them rise again
      5. You make a good point about cigarette smoke. In fact, OSHA attempted to regulate indoor air in the 1990s, but the tobacco industry managed to crush OSHA’s attempt, and then it became mute as states and localities banned indoor smoking in almost all workplaces (with the exception of Las Vegas casinos!!!)
      6. I’m not going to argue about vaccinating immigrants. Might be a good idea. I really haven’t studied the pros and cons and why it isn’t done. In any case, it’s not within OSHA’s jurisdiction (unless they get jobs).
      7. Regarding crime and other social problems, they are indeed problems, but again they generally don’t fall under OSHA’s jurisdiction. OSHA’s responsibility is to get employers to provide a safe workplace for workers, no more and no less. And this is exactly what the Vax-or-Test standard does. It’s totally within the confines of the Occupational Safety and Health Act, and I’m confident it will be upheld by the courts.
      Hope you have all enjoyed the “word salad.”

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