Does COVID-19 pose a “grave danger” in all those settings? “The Mandate itself concedes that the effects of COVID-19 may range from ‘mild’ to ‘critical,'” the court notes. It adds that the threat from COVID-19 depends on transmission trends, which have “varied since the President announced the general parameters of the Mandate in September,” and the vaccination rate among employees.
“For the more than seventy-eight percent of Americans aged 12 and older [who are] either fully or partially inoculated against it,” Engelhardt writes, “the virus poses—the Administration assures us—little risk at all.”
The court thinks OSHA’s prior positions regarding communicable diseases “further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.” The ETS, it says, “makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here. “When OSHA issued a COVID-19 ETS for the health care industry in June 2021, it likewise did not deem mandatory vaccination appropriate or necessary.
Last December, President Joe Biden said he did not think COVID-19 vaccination “should be mandatory”—a position that administration officials reiterated as late as July and August, shortly before the White House announced OSHA’s vaccine mandate. “The Mandate is staggeringly overbroad,” Engelhardt writes. “Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: 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 court adds that “the under-inclusive 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.” That is in fact how the White House presented the mandate in September. The aim, it said, was to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”
The petitioners argued that workplace safety was merely a pretext for accomplishing that goal, and the 5th Circuit is clearly inclined to agree. “After the President voiced his displeasure with the country’s vaccination rate in September,” Engelhardt says, “the Administration pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS.”