After the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings.
(Edward Gibbon, The Decline and Fall of the Roman Empire, vol. 4, chap. 44)
Today’s Americans are no different: although they have online access to the OSHA ETS that mandates employers of 100+ employees to require vaccination or else to require masks plus weekly testing, the details of how this policy works and what the courts have done or likely will do next, remain a mystery to most workers. A confused people will not long remain a free people, as Gibbon warned.
The following outline focuses on the OSHA mandate for companies with 100+ employees; OSHA also issued a similar ETS applicable to the healthcare industry, and Pres. Biden issued an executive order applicable to federal contractors. The issues involved in all three instances are closely analogous.
All links are to official government publications.
- September 9, 2021: Pres. Biden’s speech announced an intention for OSHA to mandate vaccination of employees for companies that have 100+ employees.
- November 4, 2021: OSHA released a pre-publication copy of the Emergency Temporary Standard (ETS) mandating vaccination of employees for companies that have 100+ employees.
- November 5, 2021: The OSHA ETS was officially published in the Federal Register (starting a 30-day count to December 5 and a 60-day count to January 4 for phased implementation); meanwhile, numerous lawsuits were filed in various federal circuits starting this very day. (The Federal Register publication of the ETS includes a lengthy explanation/justification; the official ETS itself consists only of the last few pages, which also are codified at 26 CFR 1910.501.)
- November 12, 2021: The U.S. Court of Appeals for the Fifth Circuit issued a temporary stay against OSHA, preventing the enforcement of the ETS until further court procedings.
- November 16, 2021: The U.S. Court of Appeals for the Sixth Circuit won the circuit lottery, by which it was determined which circuit would consolidate multiple pending cases from throughout the nation.
- December 17, 2021: The U.S. Court of Appeals for the Sixth Circuit dissolved the stay against OSHA that had been issued by the Fifth Circuit; that very day, 14 appeals began to be submitted to the U.S. Supreme Court.
- December 18, 2021: OSHA announced that the original implementation deadlines (December 5 and January 4) would be postponed as follows to allow businesses time to prepare:
- January 10, 2022: OSHA will begin enforcing the ETS, except for the weekly testing aspect.
- February 9, 2022: OSHA will begin enforcing the entire ETS.
- Late December: OSHA released a slide presentation, an informational flyer, and other resources summarizing and explaining the ETS.
- January 7, 2022: The U.S. Supreme Court is scheduled to hear oral arguments (forthcoming at the time of this blog)
Dr. Ryan MacPherson holds a PhD in history and philosophy of science from the University of Notre Dame. After serving for twenty years as a professor at Bethany Lutheran College, he served as the founding academic dean of Luther Classical College for three years. He is author of Rediscovering the American Republic, a two-volume anthology of primary sources in American history, as well as several other books on topics ranging from theology to politics to bioethics. Dr. MacPherson has testified in court in defense of a homeschool father and for the protection of traditional American civics curricula, contributed to legal briefs submitted to the U.S. Supreme Court in defense of marriage and the rule of law, appeared regularly on a variety of radio shows, and taught seminars for pastors and educators in Canada, Denmark, and Ecuador. The MacPherson homeschool family offers online enrichment courses through Lifelong Lyceum.
