(The Center Square) – Louisiana businessman Brandon Trosclair is asking the U.S. Supreme Court to stop the Biden administration’s COVID-19 vaccination mandate affecting private employers with 100 or more employees.
Trosclair is represented by the Liberty Justice Center and the Pelican Institute for Public Policy, based in New Orleans. His lawsuit challenging the vaccination mandate was instrumental to a Fifth U.S. Circuit Court of Appeals ruling in November that suspended the mandate nationwide.
That Fifth Circuit ruling, however, was recently dissolved by the Sixth U.S. Circuit Court of Appeals in Ohio.
Trosclair and a group of Texas workers filed emergency applications with the Supreme Court over the weekend. Justice Brett Kavanaugh requested a response from the federal government no later than Dec. 30.
“This fight must go to the U.S. Supreme Court, and we look forward to protecting the rights of our clients and all Americans in this historic fight,” said Patrick Hughes, president of the Liberty Justice Center.
Sarah Harbison, general counsel for the Pelican Institute said, “The Fifth Circuit was correct when it issued the original stay in the case filed by Brandon Trosclair in Louisiana, arguing that there were ‘grave constitutional and statutory issues’ with the mandate. This fight is not over.”
The mandate, which is enacted through the Occupational Safety and Health Administration (OSHA), will proceed as intended unless the Supreme Court finds the administrative rule affecting 100 million workers unconstitutional.
Businesses with 100 or more employees are required to mandate COVID-19 vaccinations or impose weekly testing regimens by Jan. 4. Employers will face fines of nearly $14,000 per worker for failing to comply.
In a 2-1 ruling Friday, a Sixth Circuit panel said, “[I]t is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”
The now dissolved Fifth Circuit said the mandate was a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).”
A Supreme Court dispute likely would involve both arguments.
Trosclair, who resides in Ascension Parish, employs nearly 500 people across 15 grocery stores in Louisiana and Mississippi.
“When I found out that we would be held to the mandate, to me it was a fairly obvious thing to get involved because the government was putting me in a position to terminate employees for not taking the vaccine or do multiple testings every week,” he said in a previous phone interview.
Trosclair added weekly testing would introduce an exorbitant expense to businesses and employees.
“I just thought it was a no-brainer to get involved and do this because it’s the right thing to do,” he said.
The U.S. Department of Labor issued a statement after the Sixth Circuit ruling, saying “OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”
Government lawyers argued COVID-19 is a both “physically harmful agent and a new hazard,” which authorizes OSHA, a workplace safety agency, to enforce COVID-19 vaccinations and testing.
OSHA said it will not impose fines on businesses before Jan. 10, providing employers act in good faith while transitioning to the mandate's requirements.