US Court has upheld the stay on President Biden’s vaccine mandate.

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US Court has upheld the stay on President Biden’s vaccine mandate.

  • The judgment is a tight slap on the Vaccine Syndicate
  • Biden brought in the mandate of vaccination or RTPCR Test at work place
  • United States’ Court found that the rule is ineffective, counterproductive as it is based on incomplete and inaccurate information and therefore unlawful, unconstitutional, illegitimate.
  • Court held that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary
  • Court also observed that the naturally immune people are at less risk and no mandate can be brought to fit one size for all.
  • Similar judgments are passed by India’s Gauhati High Court, Meghalaya High Court and Manipur High Court.

The important observations of the judgment are as under;

“…an ETS (Emergency Temporary Standard) once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.”

…the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.

…The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.

The Mandate is also underinclusive in the solutions it proposes. Indeed, even in its fullest force, the Mandate cannot prevent vaccinated employees from spreading the virus in the workplace, or prevent unvaccinated employees from spreading the virus in between weekly tests.

….unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.” 86 Fed.Reg. 61,402, 61,402.

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.

As OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces.

Every industry covered by the Mandate has had or will have “outbreaks.” As discussed below, this kind of overbreadth plagues the Mandate generally.

The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. In fact, courts have an affirmative duty not to do so. 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.

“OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy”). 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.”

…may undermine worker protection by permanently mandating precautions that later prove to be inefficacious. . . . [A]n ETS could only enshrine broad legal standards that are already in place or direct employers to develop COVID-19 response plans specific to their businesses, something employers are already doing. Such a step would be superfluous at best and could be counterproductive to ongoing state, local, and private efforts.

…Additionally, employers may choose any effective method to abate a recognized hazard under the general duty clause.

Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay.

…OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.

For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard” remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.

In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.

OHSA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace “substances,” “agents,” or “hazards” that it has used only ten times in the last 50 years and never to mandate vaccines.

Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not.

The Mandate is a one-sizefits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.

It remains unclear that COVID19—however tragic and devastating the pandemic has been—poses the kind of grave danger § 655(c)(1) contemplates. See, e.g., Int’l Chem. Workers, 830 F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘grave danger,’

(And of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for  more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.) See, e.g., 86 Fed. Reg. 61,402, 61,402–03 (“COVID-19 vaccines authorized or approved by the [FDA] effectively protect vaccinated individuals against severe illness and death from COVID-19.”).

No standard that covers all of the Nation’s workers would protect all those workers equally.”

This kind of thinking belies the premise that any of this is truly an emergency.

In contrast, a stay will do OSHA no harm whatsoever. Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate. Moreover, any abstract “harm” a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.

For similar reasons, a stay is firmly in the public interest.

The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials”.

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