Biden Shot-or-Test Rule to Take Effect After Stay Lifted

(Bloomberg Law) -- The Biden administration’s emergency Covid-19 shot-or-test rule for large employers can go into effect now that a federal appeals court in Cincinnati lifted another tribunal’s order that had blocked the measure.

A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit granted the administration’s request Friday to dissolve the Fifth Circuit’s Nov. 6 stay on the regulation. The harm caused by keeping the emergency temporary standard frozen outweighs any damage that would stem from letting it go into effect, the court said.

“Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” the court said.

The Sixth Circuit’s ruling drew an immediate appeal to the U.S. Supreme Court filed by a conservative advocacy organization and a group of businesses. The high court’s conservative majority could decide whether this key Biden initiative to boost workplace vaccination rates takes effect before it expires in May.

The administration has already asked the justices to revive a separate federal shot mandate for health-care workers that lower courts have blocked.

Thus far, the nation’s top court has kept several state and local vaccine mandates in place. Earlier this week, it left intact New York’s inoculation requirement for health-care workers and declined to order religious exemptions for 20 providers.

That order, which drew a dissent from three justices, followed similar decisions to turn down emergency petitions involving mandates for University of Indiana students, public school employees in New York City, and health care workers in Maine.

Emergency OSHA Rule

The Occupational Safety and Health Administration published its emergency standard Nov. 5. The rule requires employers with at least 100 workers to mandate that their employees either get vaccinated against Covid-19 or get tested regularly.

Republican state attorneys general, business alliances, companies, and other groups have sued to strike down the measure, contending OSHA exceeded its powers and hasn’t shown that there’s the requisite “grave danger” to allow it to issue such a rule without the formal notice-and-comment process. Challengers have also raised constitutional claims against the standard.

The Fifth Circuit called the OSHA rule unlawful and probably unconstitutional in a Nov. 12 opinion affirming its earlier stay order. The Sixth Circuit got control of the consolidated case against the measure—including the power to lift the Fifth Circuit’s stay—after winning a multi-circuit lottery.

Judges Jane Branstetter Stranch, an Obama administration appointee, and Julia Smith Gibbons, a George W. Bush appointee, formed the Sixth Circuit panel majority that lifted the stay. Judge Joan Larsen, who was tapped by the Trump administration, dissented. The composition of the panel was a mystery prior to its Friday ruling.

OSHA clearly has the power to regulate viruses, including those that simultaneously exist in and out of the workplace, Stranch wrote for the court.

The agency provided a wealth of evidence to establish the grave danger posed by Covid-19, the court said, noting that it’s “difficult to imagine what more OSHA could do” to show the hazard workers face from the disease.

“The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs,” according to the court. “To protect workers, OSHA can and must be able to respond to dangers as they evolve.”

Larsen didn’t dispute the “societal costs of the pandemic” in her dissent, but said that OSHA lacks the authority to issue the emergency rule.

The agency “cannot even regulate for the sake of the vaccinated; they are not in ‘grave danger,’” Larsen wrote. “Instead, the mandate is aimed directly at protecting the unvaccinated from their own choices.”

The case is In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, opinion 12/17/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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