The United States court of Appeals for the Sixth Circuit now has jurisdiction of all challenger to the OSHA vaccinate or test Rule binding employers of more than 100. Today the divided panel issued an order granting the Department of Labor's Emergency Motion to lift the Fifth Circuit stay on the OSHA Emergency Temporary Standard. The majority rejected the dissent by Joan Larsen - a former Clerk to Antonin Scalia and Michigan law professor. It distinguished the recent decision in Alabama Association of Realtors which held that the plain language of the Public Health Act was insufficient support for the Department of Health and Human Services order extending a moratorium on home evictions.
The majority - in an opinion by Jane B. Stranch a former labor lawyer - held that the Occupational Safety and Health Act of 1970 provided sufficient support for the broad measure:
The 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.
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