Nov. 15, 2021

Opinion Calls the Biden Administration’s Requirement a “Sledgehammer”

President Joe Biden’s attempt to push forward a vaccine mandate for companies with 100 or more employees suffered another setback on Nov. 12 when a U.S. appeals court upheld its decision to put a hold on the order.

Several states immediately challenged the mandate after the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) that would have forced large employers to ensure their workers were either vaccinated or undergoing weekly COVID-19 testing. On Nov. 6, the U.S. Circuit Court of Appeals granted an emergency stay on the mandate. Less than a week later, a three-member panel of the circuit court affirmed its ruling, blocking the ETS from taking effect.

In the opinion, the court notes that OSHA has issued just 10 ETSs in its 50-year history, only one of which survived legal challenges. “[OSHA] was not – and likely could not be, under the Commerce Clause and nondelegation doctrine – intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways,” the court wrote.

“Rather than a delicately handled scalpel, the mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the mandate purports to address,” the opinion states.

The full text of the ruling is available here.

“While great news, this is the beginning, not the end, of the legal process and there is no guarantee of an outcome,” Jade West, chief government relations officer for the National Association of Wholesaler-Distributors, said in an email to trade associations.

Additionally, the NAW shared information on updated guidance requiring employees of federal contractors to be fully vaccinated no later than Jan. 18, 2022. That information is available here.