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Sixth Circuit Lifts Stay of OSHA COVID ETS

12/28/2021

The Sixth Circuit U.S. Court of Appeals has lifted the stay placed on the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration mandating vaccination and testing.

 

Predictably the National Retail Federation (NRF) criticized the action by the Court commenting “The Sixth Circuit has decided to lift the stay instituted by the Fifth Circuit.  In our effort to consider additional legal options we will also continue to prepare our members to comply with this onerous mandate.”

 

In an additional comment, the NRF urged the Administration to delay implementation of the ETS in order to find “viable ways to increase vaccination rates and mitigate the spread of the virus in 2022.” Although this approach is supported in principle, litigation initiated by the National Retail Federation is purely self-serving and denies the magnitude of COVID with 50 million cases and over 800,000 fatalities. The organization believes that opposing the ETS, which is based on science, will lead to absenteeism and resignations, further complicating a difficult labor market.

 

The membership of NRF and their customers will be better served if the leadership of the organization promoted vaccination and other preventive measures that are widely accepted. They would provide a benefit to their members and society if they adopted a broader view of the public health crisis and realized the implications of statistics relating to an increased incidence of COVID cases, hospitalizations and fatalities.  While they waste money and time in legal posturing to oppose a vaccination mandate as the principal measure to prevent COVID, the Federation could be more meaningfully contributing to positive and productive activities in cooperation with public health authorities.

 

 The success of companies such as Tyson Foods that has immunized in excess of 97 percent of its workers and the equivalent vaccination rates among employees of the federal government and the military should serve as a guide to the NRF.  If the Omicron Variant that is more infectious than the prevailing Delta virus impacts urban areas, authorities will impose lockdowns that will be even more restrictive and damaging to retailers and their customers.

 

This said, EGG-NEWS is not in favor of broad government mandates. This not based on considerations of freedom but on practicality. Those who are sufficiently concerned over their health and that of their families and communities have been vaccinated. This proportion of our population will willingly receive any number of FDA-approved vaccines including the inevitability of annual boosters tailored to specific variants in circulation. Those who are implacably opposed to vaccination based on political sentiments and gross misinformation will not be induced to receive a vaccine by a mandate. Positive messages from local health-care providers should form the basis of persuading the vaccine-hesitant as is apparently occurring following the emergence of Omicron. For those who are absolutely opposed to COVID vaccination other inducements can be considered. These might include denial of entry to public places, imposition of fees for regular testing and charges for hospitalization and treatment for non-vaccinated patients.

 

At the end of the day there is no constitutional right to infect ones fellow citizens. The Supreme Court ruled that obligatory vaccination against smallpox was legal 116 years ago in Jacobson v Massachusetts. The majority opinion written by Justice Harlan will probably be revisited by SCOTUS in 2022. 

 

The quicker we can achieve a high level of population immunity through vaccination the faster we can return to a semblance of pre-COVID normality in our economy and in society. More extensive vaccination on a worldwide basis will be necessary to prevent the emergence of new variants and to allow international travel. That is an altogether bigger challenge than implementing a regional or national U.S. program. Let us therefore be collectively guided by our leading scientists and epidemiologists and roll up our sleeves. The stakes are too high to do otherwise.