“OSHA’s ETS, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly virus testing. The U.S. Court of Appeals for the 5th Circuit stayed the ETS on November 6, citing “grave statutory and constitutional issues.” The 5th Circuit extended that stay a week later, when it said the mandate is “fatally flawed” because it “grossly exceeds OSHA’s statutory authority.”
After that ruling, the many lawsuits challenging the mandate were consolidated and assigned by lottery to the 6th Circuit, which the Biden administration asked to lift the 5th Circuit’s stay. In doing so, the 6th Circuit majority criticized the other appeals court for reaching hasty conclusions unsupported by precedent and for failing to properly consider the evidence that OSHA presented in favor of its mandate.
An emergency standard allows OSHA to circumvent the usual rule making process by publishing regulations that take effect immediately. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a “grave danger” to employees “from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” It also has to show the emergency standard is “necessary to protect employees from such danger.”
In her 6th Circuit majority opinion, Stranch has little trouble concluding that COVID-19 qualifies as an “agent” that is “physically harmful.” Citing the Merriam-Webster Collegiate Dictionary, she says “an ‘agent’ is ‘a chemically, physically, or biologically active principle,'” while “a virus is defined, in part, as ‘any [of a] large group of submicroscopic infectious agents.'””
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“Larsen opens her dissent by chiding Stranch for misrepresenting reality. “The majority opinion describes the emergency rule at issue here as permitting employers ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,'” she writes. “With respect, that was the state of federal law before the rule, not after.”
Larsen also suggests that Stranch has pulled a bait and switch. “The majority opinion initially agrees…that an emergency standard must be more than ‘reasonably necessary’; it must be ‘essential,'” she writes. “But then that word, and the concept, disappear from the analysis. What starts as a demand for an ‘essential’ solution quickly turns into acceptance of any ‘effective’ or ‘meaningful’ remedy; and later, acquiescence to a solution with a mere ‘reasonable’ ‘relationship’ to the problem. The majority opinion never explains why ‘necessary’ undergoes such a metamorphosis.”
As Larsen sees it, OSHA “has not made the appropriate finding of necessity.” She notes that “OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk.” OSHA has the burden of explaining “why the rule should apply to a large and diverse class,” she says, but the agency “does not do so.””
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“In some respects, Larsen thinks, OSHA’s judgments are inconsistent with the numbers it cites. “OSHA has determined that no vaccinated worker is in ‘grave danger,’ whereas all unvaccinated workers are,” Larsen writes. “But the government’s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64. So an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not. One of these conclusions must be wrong; either way is a problem for OSHA’s rule.””