Why the OSHA Mandate Has No Legal Leg To Stand On

Congress did not grant OSHA the power to enforce vaccines in American workplaces.

Where do matters stand now with President Joe Biden’s vaccination mandate? Its fate is uncertain.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed the effect of the OSHA mandate pending a final ruling on its validity. But all of the appeals have been consolidated in a different appellate court, the U.S. Court of Appeals for the Sixth Circuit. OSHA later announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

That announcement is less helpful to employers than it might seem. OSHA could ask the Sixth Circuit to vacate the stay. Plus, if the mandate is upheld, OSHA could immediately begin enforcement proceedings against anyone not then in compliance. What OSHA will do is presently unknown.

Yet one thing is perfectly clear: OSHA lacks the legal authority to force a COVID-19 vaccine on Americans who do not want it. Small wonder that more than half the states are suing to stop the Biden administration’s vaccine mandate.

Start by understanding the playing field in which this issue arises.

First, federal agencies have only the authority that Congress has granted them by statute. Agencies cannot vest themselves with additional power by issuing rules.

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