On September 9, 2021, President Joe Biden announced that the federal government would require private employers with 100 or more employees to give their employees two options: Be vaccinated against COVID-19, or wear masks in the workplace and receive weekly COVID-19 tests. The Occupational Safety and Health Administration (OSHA) issued regulations implementing the President’s directive on November 4, 2021. Under the OSHA rules, employees would be required to be fully vaccinated by January 4, 2022 or be subject to the vaccine and mask mandate. The mandate also applies to federal contractors and certain health care workers.
However, President Biden’s mandate has run into a snag. On November 6, following lawsuits filed by employers and by more than half of U.S. states, the Fifth Circuit Court of Appeals issued an emergency stay blocking the enforcement of the mandate. The Court held that the plaintiffs “‘give cause to believe there are grave statutory and constitutional issues with the Mandate.’” On November 12, a three-member panel of the 5th U.S. Circuit Court of Appeals in New Orleans affirmed the stay.
“The mandate is staggeringly overbroad,” the Court of Appeals opinion said.
“The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers),” Circuit Court Judge Kurt Engelhardt penned for the panel. “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials,” Engelhardt wrote.
The Court’s action is not permanent; rather, it will remain in place while the Court determines whether to grant a permanent injunction to bar enforcement of the mandate.
The Biden administration’s response to the stay issued by the Fifth Circuit Court of Appeals has been odd, to say the least. In the wake of the Court’s action, a Biden spokesperson urged employers to “‘continue to move forward and make sure they’re getting their workplace[s] vaccinated.’”
President Biden’s vaccine mandate is problematic on multiple levels. First, it may exceed the authority granted to OSHA by Congress. Second, it encroaches upon state sovereignty and may be unconstitutional. Third, it is arbitrary (why apply the mandate to employers with 100 or more employees? Why not set the bar at 200, or at 50?). Fourth, it is heavy-handed and unnecessary. It is hoped that the mandate will never be implemented, and that the Biden administration will recognize and accept the limits of its own authority.