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Vaccine Report Card

Vaccine-or-test mandate withdrawn following Supreme Court defeat

Jan. 26, 2022
OSHA doesn’t rule out follow-up mandates that might be more narrowly focused.

The Biden administration on Jan. 26 formally withdrew the federal vaccine-or-test mandate that went down to defeat in the U.S. Supreme Court on Jan. 13.

The withdrawal order by the Occupational Health and Safety Administration (OSHA) has been formally posted to the Federal Register.

See also: Supreme Court blocks vaccine-or-test mandate

The Supreme Court’s decision on Jan. 13 to strike down the OSHA “emergency temporary standard” technically sent the ETS back to the 6th U.S. Circuit Court of Appeals for a possible further challenge by the Labor Department. But by withdrawing the ETS, the Biden administration is signaling retreat on the rules—at least in their original form that would have covered all private employers with 100 or more employees and stood to affect about 84 million workers in the U.S.

The Supreme Court struck down those rules on the grounds that OSHA did not have authority to issue such a broad edict that should be left to Congress or the states. In his concurrence that day, conservative Justice Neil Gorsuch said: “The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the states and Congress, not OSHA.”

The progressives on the court sided with OSHA’s authority on the grounds that the pandemic was unprecedented and that such protections were necessary to protect the public from a health threat that has sickened tens of millions and killed 864,203 people in the U.S. alone.

“Notwithstanding the withdrawal of the … ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” OSHA, a division of the Labor Department, said in the withdrawal order.

Many observers had predicted the outcome since the justices lean heavily conservative—by a 6-3 margin now. Most of them sounded skeptical during oral arguments on Jan. 7 about the scope of authority vested in OSHA, which issued the ETS on Nov. 5, sparking a months-long legal battle that wound its way through multiple federal appeals courts and pitted the Biden administration and OSHA against numerous petitioners—including trucking stakeholders such as American Trucking Associations (ATA), ATA’s affiliated state trucking associations, conservative attorneys general from several states, several national business groups, and religious and other organizations.

OSHA said it is still considering a vaccine policy through its normal rulemaking process that could have a narrower focus—rather than emergency rules—that would be subject to less scrutiny, according to a report in Forbes.

The Supreme Court in its oral arguments on Jan. 7 and its ruling on Jan. 13 opened the door to the possibility that OSHA had the authority to issue rules with a narrower reach. The court upheld on the same day a federal vaccine mandate aimed a health care workers that are employed at federally funded care facilities.

In an email after the White House decision, Chris Spear, president and CEO of American Trucking Associations (ATA), cheered the formal withdrawal of the broad vaccine-or-test mandate.

“We successfully challenged this misguided mandate all the way to the U.S. Supreme Court, because it was a clear overstep of OSHA’s authority, and because it would have had disastrous consequences for an already-overstressed supply chain,” Spear said in the email. “The Supreme Court bounced it, and we are pleased to see the agency has now formally withdrawn it, sending this ETS to the dustbin where it belongs.”

“The American people depend on us to deliver their essential goods each and every day, and we’ll continue to fight any proposals out of Washington that hinder our ability to do so safely and efficiently,” Spear continued. “That includes any attempt by OSHA to create a similar, permanent standard without going through the legally required process, including an actual risk-based analysis.”

This FleetOwner story is still developing.

About the Author

Scott Achelpohl | Managing Editor

I'm back to the trucking and transportation track of my career after some time away freelancing and working to cover the branches of the U.S. military, specifically the U.S. Navy, U.S. Marine Corps, and the U.S. Coast Guard. I'm a graduate of the University of Kansas and the William Allen White School of Journalism there with several years of experience inside and outside business-to-business journalism. I'm a wordsmith by nature, and I edit FleetOwner magazine and our website as well as report and write all kinds of news that affects trucking and transportation.

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