Update: Workplace Vaccine Requirements

So, it’s been almost a month since the Biden Administration issued OSHA’s Vax-or-Mask standard for employers with 100 or more employees and CMS’s vaccine mandate for all health care institutions that receive Medicare or Medicaid funding. What’s been happening since then?

OSHA

It’s been three weeks since the US Court of Appeals for the 5th Circuit refused to lift a stay of OSHA’s Emergency Temporary Vax-or-Test standard. Since then, the US Court of Appeals for the 6th Circuit has been chosen in a lottery to hear an appeal to the 5th Circuit’s stay as well as the ultimate fate of the standard (at least until a possible appeal to the Supreme Court.)  The 6th Circuit is only slightly less conservative than the 5th Circuit. The 6th Circuit has 16 active judges, 11 of whom are Republicans and 5 of those are Trump appointees. If you add in the Senior Judges , you have 20 Republicans and 8 Democrats.

Why are the Senior Judges important? Because normally cases are first heard by a 3 member panel which is chosen by lottery from all of the judges — active and senior.  We could luck out and get a majority of Democrats on a panel, although the odds are definitely not in our favor. But the plaintiffs who want to overturn the OSHA standard are arguing that  the appeal and overall case to be heard en banc, which means by all of the active judges. We’re then dealing with an 11 to 5 vote majority for the Republicans. The odds of that decision going in OSHA’s favor would be slim. DOL had until November 30 to submit a brief opposing the en banc review.

The 6th Circuit, apparently not understanding the definition of “emergency,” issued a briefing schedule indicating it won’t rule on the administration’s request until after Dec. 10

Meanwhile, the 6th Circuit, apparently not understanding the definition of “emergency,” issued a briefing schedule indicating it won’t rule on the administration’s request until after Dec. 10, according to Bloomberg Daily Labor Report.  Given that OSHA had set a December 6 compliance deadline for the standard’s first requirements — by which time employers must develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery, the original January 4 deadline for employees to either be vaccinated or tested will also be delayed. DOL has requested a faster court schedule, but the plaintiffs have objected.

I mean, what’s the rush? Delta has moved on to bluer states and Omicron will be patient with us.

CMS

The Biden administration isn’t doing much better with their planned vaccine mandate that covers health care workers.  On Monday, a federal judge in the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction halting enforcement of the Biden administration’s vaccine mandate for healthcare workers at institutions that accept Medicare or Medicaid patients in ten states. The Center for Medicare and Medicaid Services (CMS) issued a vaccine mandate November 4, the same day OSHA issued its Emergency Temporary Standard. The CMS rule, unlike OSHA’s applies to all sizes of health care employers, covers remote workers and has no testing alternative.

Then yesterday, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction halting enforcement nationwide.

Judge Doughty writes that “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” — apparently ignoring the fact that if Delta and Omnicron have taught us anything, it is human lives face grave risks when vaccine refusal causes an indefinite state of COVID emergency.

Doughty writes that “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” apparently ignoring the fact that if Delta and Omnicron have taught us anything, it is human lives face grave risks when vaccine refusal causes indefinite state of COVID emergency.

While Doughty, like the 5th Circuit judges that decided the OSHA case, argued that vaccination requirements can only be issued by Congress, he went further, even questioning whether it would be constitutional for Congress to require vaccinations:

There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency. It is not clear that even an Act of Congress mandating a vaccine would be constitutional.

Judge Doughty, as you might of guessed,  is a Trump appointee. But perish the thought that politics had anything to do with this decision.  “There’s no question I’m conservative, but my decisions are never about politics,” Doughty told USA Today Network Wednesday, a day after ruling against the vaccine mandate. “I call them like I see them. I just look at the cases and try to follow the law.”

Yeah, and I have a bridge to sell….Oh never mind.

Congress

Meanwhile, pro-pandemic Republicans in the Senate, always anxious to sabotage any measure that might make Biden successful, are now threatening to shut down the government if the next Continuing Resolution (C.R.) doesn’t defund enforcement of OSHA’s vaccine standard. Joe Manchin, being Joe Manchin, has suggested that he may be open to joining them. Being as the OSHA and CMS rules have already been blocked by the courts and aren’t being enforced, the Republican threat only makes sense as a political statement, not a serious policy proposal. The current C.R. runs out at midnight Friday.