update on workplace vaccine requirements

In politics, bad news always comes late Friday afternoon. And the whole vaccine/test requirement issue is no exception to that timing. And it’s mostly bad news.

When last we wrote, the challenges to OSHA’s vaccine or test Emergency Temporary Standard had landed in the 6th Circuit Court of Appeals. That Court has two tasks: to determine whether to maintain the temporary stay that the 5th Circuit had previously put on the OSHA standard, and second, to determine the overall merits of the OSHA rule — whether the standard is constitutional.

The plaintiffs (those opposing the OSHA standard) have requested that the court continue to block the standard and transfer the case back to the even-more-conservative 5th Circuit, which had already stated its opposition to the OSHA standard. The Biden administration and union petitioners requested that the case be transferred to the more friendly DC Circuit which is currently considering a pending union case involving the Emergency Temporary Standard covering health care workers that was issued last June. They also requested that the stay be lifted and that the hearing on the overall merits of the case be heard quickly.

On Friday afternoon, the 6th Circuit said no to everything.  Without any explanation, they rejected the administration’s request to accelerate a decision on lifting the 5th Circuit’s order that blocked the standard. They also “reserved judgement” about setting a date for the hearing addressing the overall merits of the standard and refused to send the standard to the DC Circuit.

On the other hand, in a small bit of good news, the 6th Circuit also refused to send the standard back to the more conservative 5th Circuit.

Good News

With the growing specter of Omicron haunting the world, it seems increasingly unbelievable that the courts — whether controlled by Republican or Democratic appointees — can be so wrong on the medical facts, public health benefits and the legal reasoning behind vaccine (or testing) requirements. Nevertheless, here we are.

But in some parts of the country, medical facts, public health and sound legal reasoning seem to be winning.

  • A Superior Court judge has denied a request by the Los Angeles Fire Department firefighters union seeking a preliminary injunction to delay enforcement of the city’s vaccine mandate. The mandate is scheduled to take effect on December 18. The judge said that the firefighters had failed to prove “irreparable harm” and that  “Evidence also supports that the COVID-19 pandemic has taken a significant toll on the city’s firefighters and even resulted in the death of two of its members.”
  • The 9th Circuit Court of Appeals voted 2-1 on Saturday to lift a temporary injunction that had blocked the San Diego Unified School District’s COVID-19 vaccine mandate for students. The school district’s policy restricts in-person learning and on-campus activities to students 16 and older, who are fully vaccinated.

What’s next?

The administration has filed a motion to dissolve the stay of the OSHA standard and the parties must respond to that motion by Dec. 7. Then the administration has until December 10 to respond to the responses. We should hear the court’s decision on the stay soon thereafter.

The 6th Circuit also has to decide whether a 3-judge panel will hear the case (the normal procedure), or whether the case will be heard “en banc” by all of the active 6th Circuit judges — which those opposing the standard prefer. As we discussed last week, an en banc hearing would not be optimal for OSHA.

Finally, the Senate will vote next week on a Republican-sponsored Congressional Review Act resolution that would revoke the OSHA standard. West Virginia Senator Joe Manchin has indicated that he may vote with pro-virus Republicans on the question, which means it may pass in the Senate. Then it would move to a House vote where no one has made any predictions.  Even if it passed both House and the Senate, the resolution would fail without President Biden’s signature – which seems highly unlikely.


Update (on the update): The 11th Circuit Court of Appeals has decided against a request from the state of Florida to stay of the CMS rule mandating vaccines for health care workers in facilities that take Medicare and Medicaid patients.  Judge Robin Rosenbaum found that the CMS standard was not arbitrary and capricious, did not cause irreparable harm to the state of Florida nor Florida health care workers and was in the public interest — especially considering “the population of patients covered by Medicare and Medicaid is more likely than the general population to experience severe complications”

The two judges voting to lift the stay were Obama appointees. Judge Barbara Lagoa, who wrote the dissent, was a Trump appointee.

Good news, although the decision

did not mean the Biden administration can move forward with the health-care worker vaccination requirement Monday, as originally planned. That is because a Louisiana federal judge last week issued a nationwide preliminary injunction against the Biden administration rule.

Stay tuned.


%d bloggers like this: