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The Biden administration has asked the 6th Circuit Court of Appeals to reinstate a federal workplace COVID-19 vaccine and testing mandate after enforcement had been suspended following another court’s order.
In court documents filed early Tuesday, Nov. 23, the administration urged the Cincinnati-based federal appeals court — where the case was moved earlier this month through a lottery — to lift a stay from the 5th Circuit Court of Appeals.
“Delaying this standard would endanger many thousands of people and would likely cost many lives per day,” according to the argument. “With the reopening of workplaces and the emergence of the highly transmissible delta variant, the threat to workers is ongoing and overwhelming.”
One of the plaintiffs challenging the Department of Labor Occupational Safety and Health Administration’s emergency temporary standard also filed a motion last week to have the case heard by the full panel of judges on the 6th Circuit Court of Appeals, rather than by a three-judge panel typically randomly assigned to each case. OSHA has until today to respond to that petition. The development could push out any decision on the merits of the case by at least two weeks.
After President Biden in September asked OSHA to develop a vaccine-or-test mandate, the standard was announced Nov. 4 and published in the Federal Register on Nov. 5. But OHSA announced earlier this month that it was suspending enforcement of the standard after the 5th Circuit Court of Appeals ordered that the agency “take no steps to implement or enforce” the standard “until further court order.”
Under the standard, U.S. companies employing 100 or more workers are required to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
Businesses that don’t comply could face a $14,000 penalty for a single citation. That penalty jumps to $140,000 for “willful penalties.”
The standard called for employers to develop policies by Dec. 6 and then ensure that their employees received their final vaccination doses by Jan. 4, with at least weekly testing required for unvaccinated employees after that.
The mandate faces legal challenges from at least 27 states, as well as lawsuits and petitions form private litigants and business groups. The challenges revolve around arguments that the standard violates the U.S. Constitution or exceeds OSHA’s statutory authority, that OSHA did not follow the proper rulemaking process, that workplace risks do not justify the imposition of the standard, or that OSHA cannot justify a “grave danger” by implementing the standard two years into the pandemic.
It is anticipated that the case ultimately could go to the U.S. Supreme Court for a decision.
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