Law & Principles
Ray Carter | November 11, 2021
To champion employees, Louisiana man challenges vax mandate
If courts strike down the Biden administration’s effort to use Occupational Safety and Health Administration (OSHA) regulations to make COVID-19 vaccination a near-universal condition of employment in the United States, workers may owe a particular debt of gratitude to one Louisiana business owner who was willing to lead the charge: Brandon Trosclair.
While many state attorneys general are challenging the mandate in court, including Oklahoma Attorney General John O’Connor, Trosclair has been among the most high-profile opponents from the private sector.
“For me, it was a no-brainer,” Trosclair said. “I think this is a massive overreach of the federal government. It’s outside the boundaries of OSHA, and also against the 10th and the 14th Amendments.”
Trosclair employs nearly 500 people across 15 grocery stores in Louisiana and Mississippi that conduct business under the names Ralph’s Market, Butcher Boy, and Save A Lot.
Under the new OSHA rule, Trosclair could be forced to fire any employees who decline the COVID vaccine. With help from the national law firm Liberty Justice Center and the Louisiana-based Pelican Institute for Public Policy, Trosclair has filed a petition with the U.S. Circuit Court of Appeals to challenge the new federal rule.
Trosclair said workers should be allowed to make their own personal medical decisions.
“We’re not anti-vaccine,” Trosclair said. “We’re anti-mandate.”
BST Holdings, LLC v. OSHA was filed November 5, 2021, in the U.S. Circuit Court of Appeals for the Fifth Circuit in New Orleans. The court quickly issued a temporary stay suspending the mandate. The federal government has since filed its response and the plaintiffs have filed a response to that document. The court is expected to issue a decision any day now that could include a permanent injunction. From there, officials expect a series of appeals.
“We’re planning on taking this all the way to the U.S. Supreme Court,” Trosclair said.
In the brief challenging the OSHA regulations, Trosclair and other plaintiffs argue that the OSHA regulation “is unprecedented in its scope” and “imposes substantial costs and burdens on employers and employees in every industry in the economy.”
The lawsuit argues that the vaccine mandate exceeds OSHA’s authority under its enabling statute, exceeds Congress’s authority under the Commerce Clause of the U.S. Constitution, and exceeds Congress’s authority under the nondelegation doctrine.
Among those joining Trosclair in the lawsuit are six residents of Texas who are employees of CaptiveAire Systems, Inc. The plaintiffs’ brief notes those individuals “rarely interact with colleagues in person and should not be required to vaccinate or show a negative COVID-19 test since they are highly unlikely to spread COVID-19 to colleagues they may only see a few times a year.”
Employee response to the lawsuit has been largely favorable, Trosclair said.
“I’ve had numerous, numerous employees come up to me since this whole thing went public, saying, ‘Thank you, boss; thank you boss. I really don’t want to have to take that shot,’” Trosclair said, adding that the decision to vaccinate (or not) is “their decision, not mine, and it’s not the federal government’s decision.”
He noted that businesses already face a labor shortage and the vaccine mandate will further reduce the number of available workers.
“The labor shortage is a real thing and it’s only going to get worse when you won’t let Americans go and work freely,” Trosclair said.
By publicly opposing the mandate, Trosclair said his business has attracted workers who are leaving other companies due to the mandate.
“I’ve already hired from other big companies that have this mandate coming down; they’re abiding by it,” Trosclair said.
He said customer response has also been overwhelmingly positive, based on messages received from “hundreds and hundreds of local supporters, local shoppers.”
“I’m hearing from my customers,” Trosclair said. “They are happy about this. They support this. I think I’ve gotten one legitimate complaint from a customer of mine.”
In their brief, the plaintiffs note that the Biden administration’s vaccine mandate effectively offloads the cost of government onto private employers and opens the door for further abuses that could destroy much economic activity.
The lawsuit says the vaccine mandate “unlawfully attempts to shift the administrative burden of a social problem onto employers with more than 100 employees, even though it only incidentally concerns their workplaces” and “commandeers them into forcing a federal government social policy onto their employees, and makes them pick up the cost to boot.”
The lawsuit argues there is no reason to think even more draconian edicts will not be handed down if the COVID-19 vaccine mandate is upheld.
“In the future, what is to prevent OSHA from declaring diabetes a ‘new hazard’ and mandating employers get rid of vending machines with sugary soft drinks, close elevators to all but those in wheelchairs to make employees take the stairs, and order 10-minute exercise breaks every hour?” the petitioners’ brief states. “Or from declaring global warming a ‘new hazard’ and ordering all large employers to use only electric vehicles in their corporate car fleets? If OSHA can mandate eating broccoli to keep workers healthy, it has gone too far.”
Even so, Trosclair said many businesses have chosen to stay on the sidelines out of fear, even though many business leaders privately express agreement with the lawsuit.
“I talked to a CEO of a large grocery wholesale yesterday and I said, ‘Man, I’m not hearing from other grocers that this affects. Why not?’ And he’s like, ‘Man, we’re sitting to the side wanting to see what happens with yours, because we’re scared. We’re nervous about backlash,’” Trosclair said. “Call me naïve, but I wasn’t expecting backlash because I was expecting to be one of thousands and thousands of lawsuits against this.”
Even so, Trosclair said he has no regrets about stepping up.
“As a business owner and a proud American,” Trosclair said, “it was just a no-brainer to me.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.