WASHINGTON—The Heritage Foundation filed an application Saturday with the U.S. Supreme Court to delay implementation of the Biden administration’s COVID-19 vaccine mandate on private employers. Heritage’s petition asks the court to review the case and immediately grant a stay pending resolution.
The U.S. Court of Appeals for the 6th Circuit issued a ruling Friday dissolving a stay previously issued by the 5th Circuit and allowing the Occupational Safety and Health Administration (OSHA) to reinstate the mandate. It is scheduled to go into effect inJanuary.
“If upheld, the vaccine mandate will fundamentally change the relationship between employer and employee by forcing employers to compel and regulate the personal medical decisions of their employees,” Heritage states in its application. “The vaccine mandate will also impose significant financial and other burdens on private employers and result in predictable economic chaos.”
OSHA’s mandate would affect more than 84 million employees (about two-thirds of all private-sector workers in this country) and their employers. Heritage, as an employer of more than 100 workers, would be required to“develop, implement, and enforce a mandatory COVID-19 vaccination policy” and require any workers who remain unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work.”
Heritage retained the American Center for Law and Justice, led by Chief Counsel Jay Sekulow, to represent the organization in this matter.
“The American people should be able to make their own personal medical decisions without the federal government forcing their employers to punish them or collect their private information,” Heritage Foundation President Kevin Roberts said. “We won’t stop fighting for the millions of Americans affected by this unlawful mandate.”
Heritage’s application argues that the 6th Circuit erred in its ruling because OSHA doesn’t have the statutory authority to impose a vaccine mandate on private employers. It also exceeds the federal government’s authority under the Commerce Clause and violates the 10th Amendment to the U.S. Constitution.
“There is a significant difference between requiring employers to offer the protection of a vaccine to employees who have been specially exposed in the workplace and requiring employers to mandate one for all employees who face similar exposure outside of work,” Heritage argues in its reasoning for granting the application.
The application continues, “Under the Sixth Circuit’s reasoning, the Commerce Clause would permit wide-reaching governmental mandates of all kinds so long as they were accomplished by regulating employers. There would be no definitive limit to OSHA’s authority to require businesses to take steps to protect employees from workplace dangers, even when those steps force employees, not employers, to take a vaccine.”
BACKGROUND: The Heritage Foundation announced Nov. 29 that it filed its first-ever lawsuit challenging OSHA’s mandate. In the filing, Heritage highlights OSHA’s own previous resistance to issuing new rules on a COVID vaccine mandate, and subsequently argues that the mandate is unlawful.
In a new legal memorandum published Friday, Heritage’s Paul Larkin and Doug Badger write that OSHA “lacks the capacity to consider all of the factors relevant to a policy decision on vaccine mandates: from the constitutional to the medical, the economic to the epidemiological, the theoretical to the practical.”