With the Biden administration workplace vaccine mandate halted by a federal appellate court, questions persist about how the case will unfold, given prior attempts by OSHA to issue Emergency Temporary Standards (ETS) and whether the mandate is constitutional.
“This is a sign that that the Court is initially skeptical of CDC’s authority to enforce this ETS, and affirmation that the burden is on the agency in this case to satisfy strict statutory requirements for imposing emergency regulation,” Luke Wake, an attorney with the Pacific Legal Foundation, said in an email response to the Northern California Record.
“OSHA has a poor track record with prior ETS rules where courts had previously invalidated emergency regulations from OSHA,” Wake said. “These cases speak to the fact that the burden is on OSHA to demonstrate both that there is a grave danger to workplace safety in allowing unvaccinated individuals to be present and that it was necessary to impose emergency regulations without even allowing the regulated community opportunity for public comment.”
Wake noted the main argument that the ETS is unconstitutional is that OSHA lacks statutory authority because it is attempting to regulate on a matter of general public health, as opposed to addressing a workplace-specific hazard.
“Ultimately this likely boils down to the precept that if Congress intends to authorize regulation of significant economic and political concern it must do so explicitly,” Wake said.
The Biden Administration is arguing that the OSH Act confers broad authority for the agency to decide what constitutes a grave danger and to decide what measures are necessary to protect workers, Wake said.
The litigation pending against the mandate is expected to be consolidated.
“It’s very likely that the case will eventually go up to the Supreme Court,” Wake said. “After consolidation before a randomly assigned Court of Appeal, I would expect expedited briefing on the merits and a decision sooner than one would otherwise expect.”
It remains to be seen how the pending litigation could impact the targeted Jan. 4 vaccination deadline.
“If separation of powers means anything it is that we expect Congress to speak clearly and unequivocally when authorizing something as significant as a vaccine mandate,” Wake said. “As Justice Scalia put it, Congress does not ‘hide elephants in mouseholes.’”