The 5th Circuit has affirmed its stay of OSHA’s mandate that employers must require—be deputiz[ed] their participation in OSHA’s regulatory scheme as the court acknowledged—employee vaccines, testing, or termination, or face deliberately destructive fines for not doing so.
An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.
The appellate court went on:
[T]he Mandate…exposes them [the covered businesses] to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.
And [citation omitted, emphasis added]:
Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
Each of these factors favors a stay here.
Regarding that first criterion, whether the stay applicant is likely to succeed on merit:
[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).
And [emphasis in the original]:
The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.
And:
OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.
…
Any argument OSHA may make that COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.”
And [citation omitted, emphasis added]:
It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.
…
Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.
The ruling goes on in similar veins regarding the other three factors of consideration for issuing a stay.
Here is an example of the Progressive-Democrat administration’s penchant for ruling by diktat and its utter disregard for pesky laws, our Constitution, and We the People—our government’s employers—when any of them, or us, become inconvenient to any Progressive-Democrat wish.
Especially in this regard, as the court noted in its assessment of the degree of harm to us individual citizens were a stay of this OSHA rule not granted, is this [citation retained]:
For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time…unquestionably constitutes irreparable injury.” Elrod v Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).
The court’s ruling can be read here.
