Federal appeals court reinstates Biden administration’s business vaccine and testing mandate

A federal appeals court has reinstated the Biden administration’s vaccine and testing requirement for private businesses that covers about 80 million American workers.

The ruling by the 6th U.S. Court of Appeals in Cincinnati lifted a November injunction that had blocked the rule from the Occupational Safety and Health Administration, which applies to businesses with at least 100 workers.

In the decision Friday, the 6th Circuit noted that OSHA has historical precedent for using wide discretion to ensure worker safety and “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

The White House, in a statement Friday, welcomed the court’s decision.

“The OSHA vaccination or testing rule will ensure businesses enact measures that will protect their employees,” White House spokesperson Kevin Munoz said. “Especially as the US faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

The Labor Department on Friday said OSHA will not issue citations for noncompliance with any of the requirements until Jan. 10, and it will not issue citations for the testing requirements until Feb. 9 so long as businesses are making “good faith” efforts to implement the rules.

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates,” a Labor Department spokesperson said.

The decision by the 6th Circuit sets up a Supreme Court showdown over Biden’s policy. Texas Attorney General Ken Paxton said on Friday that he will immediately ask the nation’s highest court to overturn the vaccine and testing requirements.

The Justice Department argued last week that blocking the requirements would result in “enormous” harm to the public, as hospitals brace for an increase in Covid cases this winter and the highly mutated omicron variant takes root in more states.

“COVID-19 is spreading in workplaces, and workers are being hospitalized and dying,” the Justice Department argued in a court filing on Friday. “As COVID-19 case numbers continue to rise and a new variant has emerged, the threat to workers is ongoing and overwhelming.”

The policy required businesses with 100 or more employees to ensure their workers were fully vaccinated by Jan. 4 or submit a negative Covid test weekly to enter the workplace. Unvaccinated employees were required to start wearing masks indoors starting Dec. 5.

Republican attorneys general, private companies and industry groups such as the National Retail Federation, the American Trucking Associations, and the National Federation of Independent Business sued to have the policy overturned. They argued that the requirements are unnecessary, burden businesses with compliance costs, and exceed the authority of the federal government.

“These assertions ignore the economic analysis OSHA conducted that demonstrates the feasibility of implementing the ETS [Emergency Temporary Standard],” the 6th Circuit said Friday, labeling concerns by the petitioning groups “speculative.”

The Biden administration last month stopped implementation and enforcement of the requirements to comply with an order issued by the U.S. Court of Appeals for the 5th Circuit in New Orleans. Judge Kurt D. Englehardt, in an opinion for a three-judge panel, said the requirements were “staggeringly overbroad” and raised “serious constitutional concerns.”

The more than two dozen lawsuits filed against the vaccine and testing requirements were transferred to the Sixth Circuit last month after the Biden administration ask a multidistrict litigation panel to consolidate the case in a single court through random selection.

The Justice Department, in its court filing last week, argued that the Occupational Safety and Health Administration, which developed the requirements, acted within its emergency powers as established by Congress. The Biden administration dismissed opponents claims that workers would quit because of the policy and said the compliance costs were “modest.”

“The threat to human life and health also vastly outweighs petitioners’ guesswork about the number of workers who may quit rather than get vaccinated or tested,” The Justice Department wrote in its filing, arguing that many workers who say they will quit end up complying with vaccine mandates.

OSHA, which polices workplace safety for the Labor department, developed the vaccine and testing requirements under emergency powers that allow the agency to shortcut the normal rulemaking process, which can take years. OSHA can issue an emergency workplace safety standard if the Labor secretary determines a standard is necessary to protect workers from a grave danger.

The White House has repeatedly argued that Covid presents a grave danger to workers, pointing to the staggering death toll from the pandemic and rising Covid infections across the U.S.

Reuters contributed to this report.