The Occupational Safety and Health Administration, which falls under the US Labor Department, unveiled the new rules on November 4, citing its authority to issue an emergency temporary standard to protect employees if they are exposed to a “grave danger.” It requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo regular testing and wear a face covering at work.
Eighty-four million workers at-large employers would be covered by the rules, scheduled to fully take effect on January 4.
The mandate came under immediate challenge from Republican-led states and some private employers who charge that OSHA exceeded its power. Liberal-leaning unions joined in too, arguing in some cases that OSHA has the authority to go further and issue a more stringent mandate.
The conservative Buckeye Institute is one of the groups asking for “en banc” レビュー. 特に, it is being represented by a conservative boutique law firm — Consovoy McCarthy — that also represented former President Donald Trump’s lawyers during his battle to shield his tax returns. The firm is also behind a major affirmative action case heading to the Supreme Court.
裁判所の書類で, the Institute’s lawyers argue that review by more judges on the court is necessary because the mandate presents issues of “exceptional public importance.” They say that if OSAH prevails, it will raise “fundamental questions about the relationship between citizen and the government,” and it will mean “there is no limit to the federal government’s authority in pandemics.”
A second challenger making the request is the conservative Alliance Defending Freedom, representing businesses opposed to the mandate. 裁判所の書類で, its lawyers argue that it is necessary to resolve the dispute quickly because the mandate is based on a “rarely used law of questionable applicability” and was issued without following the necessary procedural protocols.
According to Jonathan Adler, a law professor at Case Western Reserve University School of Law, all of the active judges will vote on the so-called “en banc” 嘆願. It will take a majority of the active judges on the court to grant review. It is rare on the 6th Circuit to agree to such a request, particularly before a three-judge panel has had the opportunity to rule.
“The challengers are seeking en banc review because they think this ensures them of a more favorable panel, and it’s better than taking their chances on a random draw of three judges,” Adler said.
この時点で, OSHA is complying with a directive from the 5th US Circuit Court of Appeals and is no longer reaching out to large private companies to help them comply with the emergency rule that mandates vaccinations or weekly testing for employees, according to the agency website.