Earlier this month, the 5th Circuit Court of Appeals in New Orleans issued the stay blocking a rule released by the federal Occupational Safety and Health Administration that would require private businesses with more than 100 employees to ensure that their workers are vaccinated or tested weekly for Covid-19, starting Jan. 4.
But the legal fight over the mandate is now before the 6th Circuit Court of Appeals, after nearly three dozen lawsuits filed in multiple federal appeals courts against the rule triggered a lottery to consolidate the cases.
What they said: The Biden administration is now requesting the 6th Circuit dissolve or at least modify the 5th Circuit stay order, arguing that OSHA “reasonably concluded” the rule was necessary, and that constitutional concerns raised by businesses and states challenging it are meritless.
The opponents argue that the mandate exceeds OSHA’s authority and Congress’ ability to delegate to federal agencies, as well as the First Amendment, the Constitution’s Commerce Clause and laws protecting religious freedom, among other things.
But the Biden administration argues that “Congress has long regulated companies engaged in interstate commerce in a variety of ways,” citing minimum wage and overtime laws as well as anti-discrimination laws.
“Like many federal laws that regulate business conduct, the Standard here prescribes rules concerning how to engage in that commercial activity, and those rules sometimes require taking actions,” the administration wrote in its request to end the stay.
An alternative: The administration said that if the court disagrees with those arguments, it should still modify the stay so that the masking-and-testing requirement can remain in effect as the legal fights play out.
“In light of the stay opinion’s focus on mandating vaccination, the extraordinary and ongoing threat to employee safety in the workplace, and the proven ability of masking and testing to mitigate that threat, the Court should, at the very least, lift the portion of the stay that enjoins OSHA from requiring employers to ensure that unvaccinated workers wear a face covering in the workplace and get tested regularly for COVID-19,” the administration told the court.
