Cincinnati, OH — Multiple trucking groups have filed an appeal to the U.S. Supreme Court after a federal circuit court ruled the Biden Administration’s COVID-19 vaccination and testing mandate on private businesses can proceed.

In an 57-page opinion handed down on Friday afternoon, the U.S. Court of Appeals for the Sixth Circuit said the Occupational Safety and Health Administration (OSHA) can proceed with enforcement of its Emergency Temporary Standard (ETS) ordering employers with 100 employees or more to require vaccination or weekly testing by January 4, 2022.

The decision comes a little more than a month after a ruling by the Fifth Circuit blocked enforcement of the ETS calling it “fatally flawed.”

In a 2-1 opinion, the majority argues the Occupational Safety and Health (OSH) Act of 1970 gives OSHA the statutory authority to implement such a sweeping mandate.

“OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion,” the Court said. “The language of the OSH Act plainly authorizes OSHA to act on its charge ‘to assure safe and healthful working conditions for the nation’s work force and to preserve the nation’s human resources.'”

Among the myriad ways the Biden Administration’s ETS is “unconstitutional,” Petitioners argue OSHA unlawfully bypassed the required notice and comment rulemaking process.

However, the Court said given the public health “emergency,” OSHA acted within its power.

“The ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic,” the majority opinion states.

In fact, the Court said OSHA has issued similar directives in the past, citing a 1991 rule requiring employers to make the hepatitis B vaccine (HBV) available to employees at risk of exposure.

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace. Indeed, no virus — HIV, HBV, COVID-19 — is unique to the workplace and affects only workers,” the opinion states.

Further, the Court determined OSHA’s power extends even further, writing: “Under the statutory definition, any agent, including a virus, that is either ‘toxic’ (i.e., poisonous, toxicity) or ‘physically harmful’ (i.e., causing bodily harm) falls within OSHA’s purview. An agent that causes bodily harm — a virus — falls squarely within the scope of that definition.”

Petitioners also argue large businesses are unfairly being forced to bear the cost burdens associated with the ETS — which OSHA estimates to be about $11,298 per affected entity, totaling a total burden of $3 billion.

“Congress recognized that OSHA standards would impose costs, but placed the benefit of worker health above all other considerations,” the Court said. “OSHA’s analysis, moreover, does not consider the economic harm a business will undergo if it is closed by a COVID-19 outbreak in its workplace — taking this into account would further show that the benefits will outweigh the costs of the ETS.”

Moreover, the Court ruled OSHA successfully demonstrated that “selecting larger employers means that the ETS reaches enough workers to make a meaningful difference in mitigating the risk.”

The Court also rejected the Petitioners’ argument that the Commerce Clause does not allow for the federal government to impose such rules impacting businesses because such power is granted to the States.

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The Court again referred to the OSH Act arguing it allows the federal government to preempt state and local standards that conflict with OSHA standards.

“To hold otherwise would upend nearly a century of precedent upholding laws that regulate employers to effectuate a myriad of employee workplace policies,” the Court stated.

In a withering dissent, Judge Joan Larsen wrote that absent a stay of enforcement, the Petitioners will be “irreparably harmed” due to the cost burden imposed on businesses.

Additionally, Judge Larsen argued employees who are either fired or coerced into taking the jab against their will, will also be harmed given the likely outcome the U.S. Supreme Court will eventually deem OSHA’s ETS unconstitutional.

Appeal Immediately Filed to Supreme Court 

Immediately following the Sixth Circuit’s ruling, more than two dozen of the petitioners in the case — including the American Trucking Associations, Kentucky Trucking Association, Louisiana Motor Transport Association, Mississippi Trucking Association, Michigan Trucking Association, Ohio Trucking Association, Tennessee Trucking Association, and Texas Trucking Association — filed an appeal to the U.S. Supreme Court arguing the mandate will “impose substantial, nonrecoverable compliance costs.”

Tonight we filed a stay application in #SCOTUS on behalf of 26 business associations. The covid-19 vaccines are miracles of modern medicine; our clients are essential to widely distributing them. But the ETS exceeds OSHA’s statutory authority and irreparably harms our economy. pic.twitter.com/O3p2FmQi8e

— Steven Lehotsky (@Lawhotsky) December 18, 2021

“Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated—and passing those costs on to consumers in the form of yet higher prices at a time of record inflation—or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week,” the appeal states.

TransportationNation.com will continue to follow this case closely.