U.S. Senate Passes Bill To Block Vaccine Mandate
WASHINGTON - JUNE 5: The U.S. Capitol is shown June 5, 2003 in Washington, DC. Both houses of the U.S. Congress, the U.S. Senate and the U.S. House of Representatives meet in the Capitol. (Photo by Stefan Zaklin/Getty Images)

NACS – The vote is a win for ETS opponents, but the resolution’s future in the House remains uncertain. Recently, the U.S. Senate passed a resolution to repeal the Occupational Safety and Health Administration’s (OSHA) mandatory vaccine and testing rule by a bipartisan vote of 52 to 48.

The resolution, allowed under the Congressional Review Act, has the power to nullify an administrative action if passed by both Houses of Congress and signed by the president. The resolution, introduced by Senator Mike Braun (R-IN), garnered votes from each Republican Senator as well as two Democrats—Senators Joe Manchin (D-WV) and John Tester (D-MT).

“While such resolutions enjoy expedited procedural rules in the Senate, including bypassing the filibuster, they do not have any such status in the U.S. House. That means, for it to pass, Democratic leaders in the House must decide to bring it up for a vote in that chamber, which is very unlikely to happen,” said Jon Taets, NACS director of government relations.

The House currently has its own version of the resolution, which was introduced by Rep. Fred Keller (R-PA) and has been co-sponsored by all 213 members of the House GOP caucus, but no Democrats have signed on. According to Taets, to force action on this issue, Republicans would need at least six Democrats to join them in what’s known as a discharge petition.

“It is very rare for members of the majority party to buck their own parties’ leadership and sign such petitions. That is not likely to change on this issue,” said Taets.

In addition, the White House has stated that if such a resolution were to reach the president’s desk, he would veto it. Supporters of the resolution in Congress lack the votes to override such a veto.

Taets says that the most likely scenario to stop OSHA’s emergency temporary standard (ETS) remains in the federal courts.

NACS continues to represent the convenience industry as a petitioner in the cases consolidated before the 6th U.S. Circuit Court of Appeals in Cincinnati. NACS recently filed a brief opposing the Biden Administration’s emergency court motion with the 6th Circuit to reinstate the vaccine mandate.

Shortly following the initial OSHA ruling, the 5th U.S. Circuit Court of Appeals granted an emergency stay temporarily halting enforcement of the COVID-19 vaccine mandate for private employers, citing “grave statutory and constitutional issues.”

In November, NACS joined with nearly a dozen state and national trade associations in suing OSHA over its COVID-19 vaccination and testing ETS. The petitioners seek a stay of the effective date of the mandate pending court challenges and ask that the court vacate and set aside the ETS.

The brief that NACS filed this week includes a declaration from NACS Vice President of Research Lori Stillman. (Lyle Beckwith, NACS senior vice president, government relations, submitted a declaration to the 5th Circuit in November when NACS joined in the lawsuit opposing the vaccine mandate.) Stillman cites a NACS survey of its members regarding the OSHA ETS. The survey found that 99% of the industry expects that some employees would quit their jobs rather than undergo vaccination, and that 92% of the industry expects that some employees would quit their jobs rather than undergo weekly testing for COVID-19.

An initial decision on whether the rule will be delayed while the case is litigated is expected early next week.