#Breaking USCCoA -6th Circuit. BIG WIN for OSHA & the Biden Administration. UPDATED with DOL Dec 18th statement

Circuit splits are never a good thing. That when two or more Circuits split then we enter a different judicial landscape. Because this almost guarantees SCOTUS will step in.

Updated December 18, 2021 at 9:15PM

Shortly after 7:03PM (DC local time) my inbox alerted that the Department of Labor issued a statement via a press release concerning last night’s 6thCCoAs ruling which effectively lifted the 5thCCoAs “stay” -and perhaps my nearly 72 hour work week I had overlooked the previous statement by DOL or that I failed to hunt down my twenty month old research. No kidding I averaged 16+ hours per day this week (5AM to 11PM) because when the General Assembly is in session, then our clients expect me to work my magic.

Department of Labor December 18, 2021 News Release which reads in part: STATEMENT FROM THE US DEPARTMENT OF LABOR ON THE 6TH CIRCUIT COURT OF APPEALS DISSOLVING THE STAY OF OSHA EMERGENCY TEMPORARY STANDARD ON VACCINATION AND TESTING

• “OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

• To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS.

• To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  OSHA will work closely with the regulated community to provide compliance assistance.”

Flashback April-May 2020 a certain Twitter account kept tweeting, threading and then retweeting their own research…

“…this is going to be really bad…OSHA needs to do something before more workers die. Tyson foods, your apology is not accepted return to sender. You put profits ahead of the safety of your workers. I hope you are sued into financial insolvency, you greedy assholes. Wait until this hits the supply chain and then all of a sudden it will be an emergency ”

In April/May 2020 I took a lot of heat for threads (like this one and this one) and perhaps those archived twitter threads might have been on the spicy side. I do not regret sounding the alarm in the early Spring of 2020. Mainly because there was a perfect storm brewing and the catastrophic consequences meant a lot of workers would die. In my industry, employers like mine pay folks a lot of money to mitigate liability, help craft public policy but most importantly argue the law to protect their client’s workforce. No really April 27, 2020 at 7:57AM I tweeted this

Also at some point there will be a serious investigation into WHY OSHA isn’t really enforcing the CDC social distancing guidelines https://www.oig.dol.gov/public/oaprojects/OSHA%20COVID-19%20Engagement%20Memo%20041420.pdf …

Here’s the thing, in DC you have individuals who can accurately forecast a hellscape and then work quickly to identify how a Federal Agency can and should use their power to protect the American workforce. Those who sound the early alarm tend to 1) not only know what they are taking about, 2) know which Federal Agency has the Authority, 3) many of the deaths (for example the meat packing industry) could have been prevented had the previous administration utilized their statutory authority to keep American workers safe and 4) don’t offer opinions, but actual facts with numerous documents to support said facts.

The hardest part is educating the general public. Meaning hoping that the facts will help educate the general public. Lastly just because I could say “I told you so twenty freaking months ago” doesn’t bring me any satisfaction because thousands of American workers died from COVID-19. Their employer(s) put profits above the safety and health of their workers… hence why last night’s 6thCCOAs ruling was a pivotal win for OSHA and more broadly the Biden Administration.

Original unedited article continues below…

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Sometimes it can feel like whiplash -meaning just a few days ago the U.S. Circuit Court of Appeals (USCCoA), specifically the Fifth Circuit -which granted a stay of OSHA’s vaccine-test mandate.

In the December 13, 2021 Fifth Circuit opinion, a three judge panel upheld the district court's decision to issue a preliminary injunction, although it was not a Nationwide Injunction. Importantly though: “there was no basis for a nationwide injunction” —Thus limiting to 14 States. Thereafter the injunction was narrowly defined -but again the vaccine-or-test ETS the intent is to ensure safety of workers, if their employer employs more than 100 employees -vaccinate or be subjected to weekly test and PPE. The Conservative Media’s “Biden Vaccine Mandate” some how now largely adopted by MAGA -there is no such mandate in OSHA’s November 2021 ETS.

5thCCoAs upheld the lower Court’s injunction. The Opinion reads in part:

The district court held that the Secretary's decision to enter the vaccine regulatory space for the first time implicates what some courts and commentators have called the "major questions doctrine," though apparently not (yet) so designated in a majority opinion for the Supreme Court. It appears to us not so much a new doctrine but a new label for courts' method of analyzing federal agencies' novel assertions of authority. For example, the Supreme Court did not give deference to the Food and Drug Administration's 1996 decision that it had implicit authority under its governing statutes to regulate tobacco. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).

Our court relied in part on this doctrine in recently staying the COVID-19 vaccination mandate the Occupational Safety and Health Administration ("OSHA") issued for employers of a certain size….The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit. It stated that "due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity" and noted that "there are unvaccinated workers in other states who also need protection."

Lacking is either the constitutional uniformity principle in Texas or that case's concern that patchwork rulings would undermine an injunction limited to certain jurisdictions.

USCCoAs -the 6th Circuit lifts 5th Circuit’s Stay

In a 57 page Memorandum/Order the 6thCCOAs effectively reinstated the Biden administration’s vaccine-or-test mandate for large businesses (vis-a-vis) OSHA’s mandate, known as the Emergency Temporary Standard (ETS) on Vaccination and Testing. This Emergency ETS was issued in early November 2021 and subsequently published by the Occupational Safety and Health Administration.

OSHA’s ETS mandate, published several policy templates -as a guide for businesses in vaccinating and testing their employees. Furthermore OSHA listed employers and workplaces that are covered and/or excluded from the ETS.

• Companies with more than 100 employees must require staff to be vaccinated before the 4th of January.

• Unvaccinated employees must submit weekly negative Covid-19 tests, or they will be proscribed from entering the workplace.

• Unvaccinated workers will be required to wear masks in workplaces as well.

It is stunning to me that what’s lost is the underlying purpose; the safety & healthiness of employees. Which is categorically in OSHA’s wheelhouse. Between RAGA’s complicity concerning Jan6th to their aggressive “my body my choice, ‘Murica land of the free” arguments should literally make your eyes twitch.

If that’s not enough to convince you that OSHA and more broadly the Biden Administration’s takes their “duty to care” seriously then how about the fact that over 800,000 Americans have died due to COVID-19. By the time this reaches SCOTUS that number could rise to over a million dead Americans.

The nexus can and should be that the previous administration’s gross criminal negligence largely contributed to hundreds of thousands of Americans dying all because the former Administration lied to us about the severity of how deadly COVID-19 was and still is.

Remember this Bob Woodward Interview?

Donald Trump knew exactly how deadly COVID-19 was/is… that’s not my opinion those are the words uttered by our former president. He knew. He lied. He failed his duty to protect Americans. And now over 800,000 Americans are dead because of COVID-19 and it compounded by the saturation of disinformation. The irony isn’t lost on me that Trump’s own supporters are disproportionately impacted.

One reasonable conclusion is MAGA-QANON-GOP have become so indoctrinated that common sense and facts mean little to them -because Trump down played and in most cases out right lied to the American people. A complete and criminal abduction of what a President of the United States should do. Sadly during the Trump Administration it’s clear he & his sycophants governed “for only their supporters” when they had an ethical and moral obligation to look out for all Americans. History will be brutally unkind to Donald Trump and the countless enablers. Second to the Jan6th Domestic Terror attack on our Capitol -the Trump Administration’s mishandling of COVID-19 should be an indelible stain on the whole of his presidency.

If he had been truthful to the American people, encouraging masks, physical distancing and vaccinations —it’s difficult to accurately ascertain, just how many of the over 800,000 Americans would have been saved.

…In interviews for Washington Post associate editor Bob Woodward's new book, President Trump called coronavirus “deadly,” as he publicly downplayed its threat. Read more: https://wapo.st/32fQy33.

This particular paragraph in tonight’s 6thCCoAs Opinion concisely summarizes the current state of play. Keep in mind this was not an en banc panel, only three Judges heard oral arguments.

🌶Spicy Sidebar🌶 —it is possible that the Plaintiffs could ask for an en banc de novo review, but based on the trajectory of this case (and others similarly situated) that the Plaintiffs might just go to the Supreme Court (SCOTUS). That’s the likely next step. And it makes a lot of sense because when there’s a split in the U.S. Circuit Court of Appeals —generally speaking a circuit split typically means SCOTUS steps in. To be clear there are several cases being simultaneously adjudicated in several district courts.

…the virus rages on, mutating into different variants, and posing new risks…

…COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks….

…Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace…

It is astonishing to me that RAGA would be this irresponsible, mainly because they are ironically leaving hundreds of thousands, actually millions of their own supporters down a black hole of a painfully and preventable deaths.