On November 4, 2021, the Liberty Justice Center and the Pelican Institute for Public Policy filed suit in the Fifth Circuit Court of Appeals to stop the Biden Administration from imposing an illegal COVID-19 vaccine mandate on nearly 100 million Americans.
In September, President Biden announced that the federal government would mandate COVID-19 vaccines for all Americans who work for private companies with 100 or more employees. Because the states, not the federal government, have authority over public health, the Biden Administration is having Occupational Safety and Health Act (OSHA) impose the mandate under the guise of workplace safety. It plans to avoid the normal notice-and-comment procedures by styling the mandate as a emergency temporary standard (ETS).
The Liberty Justice Center is representing a Louisiana business owner and Texas-based employees of a second business who will be adversely affected by the mandate. The Trosclair family operates 16 supermarkets in southern Louisiana and Mississippi with almost 500 employees. The Trosclair companies already face a shortage of full-time employees and the COVID-19 vaccine mandate will make hiring and keeping employees harder for them because many employees do not want to get the vaccine or be subjected to weekly testing.
Six employees of CaptiveAire, a company that manufactures and services commercial ventilation systems, who live in Texas will also be harmed by the mandate because they do not want to be forced to receive the COVID-19 vaccine or be subjected to weekly testing. The mandate is especially problematic for five of the CaptiveAire employees who work remotely.
The Liberty Justice Center is challenging the mandate on grounds that it exceeds OSHA’s statutory authority under the Occupational Safety and Health Act. First, OSHA’s authority is limited to workplace-related hazards, but the risk of COVID-19 infection is a society-wide danger. Second, OSHA cannot show that COVID-19 is a grave danger for all employers with 100 or more employees because only a few months before, it concluded that COVID-19 was only a grave danger to healthcare employers. Additionally, whether COVID is a grave danger in a workplace depends on individual employees’ age and health, not how many co-workers they have. Third, because the mandate applies regardless of individual employee’s risk and difference in workplace conditions, it is not narrowly tailored as emergency standards are required to be. Finally, OSHA’s statutory authority to protect employees from “new hazards” must be read to exclude COVID in light of the preceding language: “substances or agents determined to be toxic or physically harmful.” Otherwise, the agency could promulgate any regulation that would have the arguable effect of preventing the spread of a communicable disease.