The 3 - November 21, 2021

This edition of The 3 features the decision of the governmental agency in charge of enforcing the Administration's COVID vaccine mandate to abide by a court decision and halt further enforcement action.  Also, a Virginia teacher who spoke up about a proposed policy forcing educators to call students by their preferred pronouns has been exonerated.  And, it appears that religious freedom protections for federal contractors will be curtailed.

OSHA decides to wait out court action

The Biden Administration's attempt to force businesses who employ 100 or more to enforce mandatory COVID vaccines on its employees has been met with swift and strong opposition in the courts: from state governments to companies and even some ministries.

The U.S. Court of Appeals for the Fifth Circuit was the first to put the mandates on hold.  The National Law Review documented the progression regarding the Emergency Temporary Standard issued by OSHA, a division of the U.S. Department of Labor:

On November 6, 2021 the Fifth Circuit Court of Appeals (based in New Orleans) issued a very short preliminary ruling “staying” implementation of the ETS pending further briefing in the court. Then, on November 12, 2021 the Fifth Circuit entered a long opinion in which it has issued a preliminary stay of the law.

In doing so, the court signaled in the strongest of possible terms that it was poised to find that the rule does exceed OSHA‘s statutory authority in several ways and is unconstitutional. 

The website announced that on November 17, "OSHA has suspended all activities relating to the implementation and enforcement of the ETS pending further litigation. However, this is still a temporary ruling and will be appealed, most likely all the way to the Supreme Court, which would make the final decision."

There are other cases making their way through the courts - for instance, the 6th Circuit has been designated to hear further challenges to the mandate, according to the Alliance Defending Freedom.

Teacher returns to classroom with clean record

ADF also represents Tanner Cross, the teacher in Loudoun County, Virginia, who was suspended due to his public comments at a school board meeting in opposition to calling students by their preferred pronouns corresponding to their so-called "gender identity." He has had his record restored following a positive ruling from the Virginia Supreme Court, according to the legal organization's website, which says:

In settlement of the original claims that Alliance Defending Freedom attorneys filed on behalf of Leesburg Elementary School teacher Tanner Cross, the Loudoun County School Board has agreed to a permanent injunction prohibiting it from retaliating against Cross for expressing his constitutionally protected views on the board’s transgender policy.

And, there's more good news, according to ADF: "As part of the settlement, the Loudoun County School Board also agreed to remove any reference to Cross’ suspension from his personnel file and to pay $20,000 toward Cross’ attorneys’ fees."  Court action will continue, though, involving other teachers in the district.  The website relates:

In August, the court allowed ADF to amend its original complaint to add new claims against newly enacted Policy 8040 and to include Loudoun County High School history teacher Monica Gill and Smart’s Mill Middle School English teacher Kim Wright as clients alongside Cross. That portion of the lawsuit will continue against the board.

Federal agency to rescind religious freedom protection

Federal contractors may face a reduction in religious freedom as the result of a new proposed rule change, according to The Christian Post, which reported:

The Office of Federal Contract Compliance Programs, a U.S. Department of Labor division, has proposed rescinding a federal contractor rule adopted under President Donald Trump in 2020.

The article stated, "In the proposed rule change, published in the Federal Register...the OFCCP argued that the Trump administration rule was too broad compared to previous administrations and ran afoul of discrimination measures governing federal contractors."

The Christian Post report goes on to say:

The Trump-era rule came in response to an Obama-era directive that added sexual orientation and gender identity to the list of protected employment classes governing federal contracts. Critics feared the Obama-era rule could put faith-based contractors in jeopardy of losing their contracts if their hiring policies don't comply with the federal government's interpretation of LGBT discrimination law.

Now, in an effort to prevent so-called "discrimination" on the basis of sexual orientation or gender identity, it appears the Department of Labor will now place greater scrutiny on contractors who claim a religious exemption from compliance.  As the Christian Post article points out, "Many religious organizations that contract with the federal government have required their staff to agree to statements of faith and conduct themselves in accordance with the organizations' statements of faith."