Vaccine Mandate Halted; Appeals Court to Review

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construction worker wearing mask

A federal appeals court has halted the Biden administration’s vaccine mandate for businesses that employ 100 or more workers, so the rule can be reviewed.

The court’s stay of the mandate comes two days after the White House announced that employees of companies with 100 or more workers must be fully vaccinated by January 4 or wear a mask in the workplace and show negative Covid tests weekly. The mask requirement for unvaccinated workers was to take effect December 5.

Those filing the petition November 5 for review of the U.S. Occupational Safety & Health Administration’s emergency temporary standard include Trosclair family-owned supermarkets and businesses in Louisiana; the states of Louisiana, Texas, Mississippi, South Carolina and Utah; and various other businesses and groups. The Trosclairs are being represented by attorneys from the Liberty Justice Center.

Their petition states that the mandate exceeds OSHA’s and Congress’ authority. It adds that the Louisiana supermarket chains, which include Ralph’s Market, Butcher Boy and Save A Lot, employ about 500 workers. The mandate would adversely effect the company because it already faces a worker shortage, and the mandate “would make it even harder to hire and keep employees,” the petition says. That would also “diminish their ability to provide grocery options to the citizens of Louisiana.”

The petition also includes Texas workers of CaptiveAire Systems, which has 1,500 employees. They will be adversely affected because the mandate “will force them, against their will, to show their employer proof of Covid-19 vaccination or risk losing their jobs and livelihoods if they choose not to.” The testing and mask alternative would also be especially unfair and illegal for some of the employees who work mostly alone on roofs “and are highly unlikely to spread Covid-19” to coworkers and customers.

“Therefore, OSHA’s claimed authority over their private lives and vaccine status is an egregious government overreach,” the petition says.

The petition asks for the court’s review and to grant an emergency stay.

On November 6, the 5th Circuit U.S. Court of Appeals, based in New Orleans, granted the stay.

“Because the petitions give cause to believe there are grave statutory and constitutional issues with the mandate, the mandate is hereby stayed pending further action by this court,” the court’s order says.

The vaccine rules were issued November 4. Along with the vaccine or mask and testing rules, it requires employers to provide paid time off for workers to get vaccinated and recover from any side effects from the shots. It does not, however, require them to pay for workers’ weekly Covid testing.

For that reason, the Biden administration argues that workers have a choice on whether they get vaccinated and that “there have been no ‘mass firings’ and worker shortages because of vaccination requirements.”

In a statement, Biden said vaccines have long been required in the U.S. “We’ve been living with them throughout our lives for all sorts of diseases. Safety rules in the workplace are nothing new either. We require hard hats in construction sites and safety goggles in labs. And with today’s actions, we now have requirements to protect people from something that has taken the lives of 750,000 Americans.”

Meanwhile, construction associations have come out in opposition to the mandate.

Ben Brubeck, vice president of regulatory, labor and state affairs for the Associated Builders and Contractors, says it “is likely to increase compliance costs and cause regulatory burdens that will exacerbate several headwinds facing the construction industry – which is currently facing a workforce shortage of 430,000, escalating materials prices and supply chain bottlenecks – and the American economy.”

The mandate also creates confusion within the construction industry and will lead to workers at larger construction firms quitting to work for companies with fewer than 100 workers to get around the mandate, according to Stephen Sandherr, CEO of the Associated General Constractors. “This is something many workers will easily be able to do in a labor market where nearly 90 percent of construction firms are having a hard time finding workers to hire,” he says.

Sandherr says AGC has advocated vaccinations, and instead of mandates, the administration should focus on “providing additional resources and support to encourage workers to do the right thing.”

The federal government has until 5 p.m. November 8 to respond to the petition, and the petitioners have until 5 p.m. November 9 to file any reply, according to the Appeals Court.