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Toppling Shot-or-Test Rule Threatens Job Regulations, Groups Say

Dec. 1, 2021, 9:01 PM

A court ruling that strikes down OSHA’s Covid-19 shot-or-test rule because its costs to individual employee choice outweigh its benefits would make other workplace requirements subject to similar challenges, worker advocacy groups told a federal appeals court in Cincinnati.

The U.S. Court of Appeals for the Sixth Circuit would open the door to “personal liberty” challenges to employment regulations if it overturns the emergency measure based on that theory, the National Employment Lawyers Association and Jobs With Justice Education Fund said in a brief filed late Tuesday.

“For decades, unions and individual workers have challenged many workplace regulations on the same theory, but were unsuccessful,” the groups said. “The Court needs to be clear that a decision for Petitioners would revive challenges that until now the courts have uniformly rejected.”

The worker advocacy groups weighed in on the possible consequences of striking down the emergency rule in a brief on the Biden administration’s motion to dissolve the Fifth Circuit’s order that froze the measure Nov. 6. But they didn’t argue for or against the government’s request.

The group’s focus on potential ramifications of overturning the Occupational Safety and Health Administration regulation shows the overlap between litigation over the stay order and the merits of the rule itself. The fight over the stay appears to be taking on more importance due to the pace of litigation and the temporary nature of the rule.

Stay Litigation

OSHA finalized its contentious emergency standard last month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule, which is set to last just six months in its current form, applies to employers with at least 100 workers.

The Sixth Circuit is handling the consolidated case against the rule after winning a multi-circuit lottery. That court won’t get to the merits of the emergency regulation until it resolves several pending motions, including the government’s bid to lift the Fifth Circuit’s stay.

But that issue won’t be fully briefed until Dec. 10—four days after the shot-or-test standard’s first major compliance deadline.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

‘Liberty Interests’

The Fifth Circuit’s Nov. 12 opinion upholding its earlier stay order blasted the OSHA rule on several grounds, including that it “threatens to substantially burden the liberty interests” of individual workers who could be forced to choose between getting vaccinated or losing their jobs.

Overturning the emergency rule on personal liberty grounds, the National Employment Lawyers Association and Jobs With Justice said in their brief, would clear the way for challenges to the Transportation Department standards on drug testing and vision, federal agencies’ mandatory retirement age requirements, and workplace safety measures.

In other briefs filed Tuesday, a coalition of public-health and health-care scholars and organizations argued for dissolving the Fifth Circuit’s stay order. The shot-or-test rule reflects evidence showing vaccinations is the main way to prevent the rise of coronavirus variants, like delta and omicron, they said.

Three former OSHA administrators also pressed the Sixth Circuit to lift the stay, saying in their brief that the Fifth Circuit’s decision reflects a faulty and problematic view of the agency’s power to protect workers from disease.

Parties have until Dec. 7 to file motions opposing the Biden administration’s request to dissolve the stay order.

The case is OSHA Covid Rule, 6th Cir., No. 21-07000, brief filed 11/30/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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