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Challenges mount at high court over OSHA vaccine-or-test mandate

The Supreme Court received at least 11 emergency applications on Monday challenging the federal mandate for businesses with over 100 employees to require COVID-19 vaccinations or weekly testing. 

Enforced through the Occupational Safety and Health Administration, the mandate was reinstated on Friday when a Sixth Circuit panel overturned what had been pause on the nationwide rule imposed by a federal judge. It is set to take effect on January 4.

The groups challenging Biden’s mandate include conservative groups like the Heritage Foundation, 27 states, business associations like the National Federation of Independent Business and the Job Creators Network, BTS Holdings, religious groups like the Word of God Fellowship and the Southern Baptist Theological Seminary, companies like Phillips Manufacturing and construction workers. Most of the groups are challenging OSHA’s authority to enforce the mandate while others are also alleging violations of the First Amendment and religious freedom. 

Without a stay from the high court, the mandate would affect about 84 million workers and require unvaccinated employees to wear face masks and be subject to weekly testing for COVID-19. 

Ohio is at the helm of the pack of 27 Republican-led states claiming that the mandate is unprecedented and that OSHA does not have the authority to enforce it because COVID-19 is not an occupational danger that the agency can regulate, the virus does not present a “grave” danger, and the mandate does not satisfy the emergency provision requirement. 

“For the vast majority of covered employees, the COVID-19-related risk presented by work is the same risk that arises from human interaction more broadly,” the states said in their brief. “The virus’s ‘potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few.’ Because it is not an occupational danger, it is not the sort of danger that the Emergency Provision empowers OSHA to address.” 

The National Federation of Independent Business claims the mandate will cause “irreparable harm” on hundreds of thousands of businesses and will cause a devastating labor upheaval. 

“It will impose substantial, nonrecoverable compliance costs on those businesses,” the group wrote.  “Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated — and passing those costs on to consumers in the form of yet higher prices at a time of record inflation — or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week. The resulting labor upheaval will devastate already fragile supply chains and labor markets at the peak holiday season.” 

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The religious organizations are challenging the mandate because it does not offer accommodations required by the Religious Freedom Restoration Act of 1993. 

“Any mandate that forces the organizations to compel their employees to be vaccinated against their will is one that would require it to violate their employees’ sacred rights of belief and conscience,” the Word of God Fellowship said in its brief. “That is something that none of the organizations can do without sinning against God.” 

Some of the organizations — like BTS Holdings — say Congress did not grant OSHA the powers to authorize the mandate and if it did it would be violating the constitution. 

“There is no need to avoid administrative accountability by using an emergency rule to address a pandemic that has been ongoing for over two years,” the group wrote in their brief. “Congress did not grant the Occupational Safety and Health Administration such sweeping powers in its authorizing statute. And if it had, such authority would violate the U.S. Constitution.” 

Friday's majority opinion by U.S. Circuit Judge Julia Smith Gibbons said that the mandate was “not a novel expansion of OSHA’s power” and that the agency had the authority to regulate infectious diseases not unique to the workplace. 

"Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace," the Bush appointee wrote. 

OSHA first announced the mandate in November. The Fifth Circuit had granted a stay to BTS Holdings in its challenge against the mandate, but the onslaught of challenges filed across the country triggered a lottery process and the cases were assigned to the Sixth Circuit for all further proceedings. 

Monday's stay applications were submitted to Justice Brett Kavanaugh, per court rules, and a response from the Biden administration is due by Dec. 30. 

The administration has other vaccine mandates that are being challenged in court, and the high court has seen multiple challenges on vaccine mandates come across their docket this year already.

So far, the court has turned down relief for workers seeking religious exemptions. Last week the Fifth Circuit overturned an injunction on a vaccine mandate for health care workers in federally funded facilities.

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Lisa Ferdinando/DoD

Doses of the COVID-19 vaccine are seen at Walter Reed National Military Medical Center, Bethesda, Md.