A federal appeals court Friday reinstated Biden administration rules that require many employers to ensure that their workers are vaccinated or tested weekly for Covid-19.
A divided panel of the Sixth U.S. Circuit Court of Appeals dissolved a stay issued by another court that had blocked the rules. The majority, in a 2-to-1 ruling, said legal challenges to the administration’s vaccination-and-testing requirements were likely to fail.
The ruling is a near-term boost to the White House but was immediately appealed on an emergency basis to the Supreme Court by some employers who oppose the mandate.
The requirements, issued by the Occupational Safety and Health Administration and scheduled to take effect in January, apply to businesses with 100 or more employees and cover roughly 84 million workers.
Employers who don’t comply with the requirements could face penalties of up to around $13,600 a violation. The requirements don’t apply to employees who don’t report to a workplace where other individuals are present, employees who only work from home or employees who work exclusively outdoors.
Three Biden administration vaccination requirements have been challenged in courts around the country. One set of rules, applying to many healthcare workers, is already pending at the high court after the Biden administration on Thursday asked the justices to reinstate the requirements as lower courts put them on hold in parts of the country.
Other vaccine rules that apply to federal-government contractors could land at the Supreme Court soon after lower courts have put them on hold.
The Biden administration has argued its rules are legally sound and urgently needed in light of the continuing health threats posed by the pandemic, including the new Omicron variant of Covid-19 that has led to a spike in infections.
“It’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment,” a White House spokesman said after the ruling.
Republican officials and business owners are among the litigants who have sued the administration, arguing the rules are heavy-handed regulations that exceed the powers of the executive branch.
The requirements “will cause irreparable harm to businesses and employees across the country, and will wreak havoc on supply chains that are already stretched to their limits,” said Robert Alt of the Buckeye Institute, an organization representing one group of employers challenging the rules.
In Friday’s decision reinstating the OSHA rules for private employers, the Sixth Circuit majority cited the continued Covid-19 public-health crisis and said the federal government had broad authority to ensure workplace safety.
“OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion,” Judge Jane Stranch wrote for the court.
“It makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal,” wrote Judge Stranch, an Obama appointee. She was joined by Judge Julia Smith Gibbons, an appointee of
George W. Bush,
who said judges should not substitute their judgment for OSHA’s on a matter in which reasonable minds may disagree.
The ruling by the Cincinnati-based court negated a decision by a sister court, the Fifth Circuit in New Orleans, which put the vaccine-and-testing requirements on hold last month. That court said the Biden administration approach raised “grave statutory and constitutional issues.”
The Fifth Circuit lost jurisdiction over its case after legal challenges filed around the country were all consolidated and transferred to the Sixth Circuit by a judicial panel that manages multidistrict litigation.
In dissent Friday, Judge Joan Larsen, a Trump appointee, said OSHA had not offered sufficient justification for adopting a broad vaccine-or-testing mandate, and she questioned whether Congress had given the agency the power to do so.
“OSHA has alerted us to no prior attempt on its part to mandate a solution that extends beyond the workplace walls—much less a permanent and physically intrusive one, promulgated on an emergency basis, without any chance for public participation. But that … is what OSHA has done here,” Judge Larsen wrote. “A vaccine may not be taken off when the workday ends; and its effects, unlike this rule, will not expire in six months.”
Other conservative judges on the court registered displeasure with the Biden administration rules in dissent Wednesday, when the court declined to hear the case with all active Sixth Circuit judges participating, rather than just a three-judge panel. Almost all cases are heard initially by three judges.
Write to Brent Kendall at [email protected]
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