Biden administration asks federal appeals court to immediately lift pause on business vaccine mandate

Last week, a broad coalition of doctors, nurses and pharmacists called on businesses to implement the Biden policy, saying vaccination is key to ending the pandemic and protecting workers. The group included the American Medical Association, the American Academy of Pediatrics, the American College of Emergency Physicians, and the National League for Nursing among others.

The Biden administration was forced to halt implementation and enforcement of its vaccination and testing policy in response to an order from the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative appellate courts in the country. Judge Kurt D. Engelhardt, in an opinion for a three-judge panel, said the policy was “fatally flawed” and “staggeringly overbroad,” raising “serious constitutional concerns.”

More than two dozen lawsuits have been filed against the Biden policy. 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 want the requirements overturned. Labor unions have sued asking courts to expand the requirements to cover smaller businesses and protect more workers.

Those lawsuits were transferred to the Sixth Circuit last week after the Biden administration asked a multidistrict litigation panel to consolidate the cases in a single court through random selection. The Biden administration is now requesting that the Sixth Circuit Court of Appeals, based in Ohio, end the pause ordered by the Fifth Circuit in Louisiana.

The Justice Department, in its motion Tuesday, dismissed the Fifth Circuit’s constitutional concerns as “meritless,” arguing that requiring business to protect employees from workplace dangers does not exceed the federal government’s authority under the Commerce Clause of the Constitution.

The Biden administration also told the Sixth Circuit that the Occupational Safety and Health Administration, which developed the rules under emergency powers, acted well within its authority under the statute established by Congress.

OSHA, which polices workplace safety for the Labor Department, can shortcut the normal rulemaking process if the Labor secretary determines that a new workplace safety standard is necessary to protect workers from a grave danger. The White House has repeatedly said that the virus clearly poses a grave danger to workers, pointing to the staggering death toll and high rates of transmission across the country.

The Biden policy required businesses with 100 or more employees to ensure their staff were vaccinated or undergo weekly Covid testing by Jan. 4. Unvaccinated employees were required to start wearing facemasks indoors at the workplace starting Dec. 5.

Several groups have asked the Sixth Circuit’s full bench of 16 active judges to hear the case rather than a three-judge panel. A hearing in that venue could prove more favorable to those who want to overturn the requirements due to the court’s Republican-appointed majority.

Regardless of what the Sixth Circuit decides, legal experts believe the case will ultimately end up in the Supreme Court.

Article source: https://www.cnbc.com/2021/11/23/business-vaccine-mandate-biden-administration-asks-court-to-lift-pause-.html