WASHINGTON – A federal appeals court Friday called a Biden administration rule requiring large companies to mandate COVID-19 vaccines for employees “staggeringly overbroad” and ordered that its implementation remain blocked in a divisive case likely bound for the Supreme Court.
Businesses with 100 or more employees had been required under the rule to stand up vaccine or regular testing requirements by Jan. 4 or face penalties of nearly $14,000 per violation under an emergency Occupational Safety and Health Administration rule made public this month.
But the emergency regulation prompted more dozens of lawsuits from conservative states and businesses questioning whether the federal agency responsible for ensuring workplace safety has the power to impose requirements for fighting a pandemic.
The New Orleans-based U.S. Court of Appeals for the 5th Circuit blocked implementation of the regulation Friday after temporarily freezing it over the weekend. Among the plaintiffs: The states of Texas, Louisiana, Mississippi and South Carolina.
A three-judge panel called the rule “fatally flawed” and said it “grossly exceeds OSHA’s statutory authority.” The court said that “however tragic and devastating” COVID-19 has been, it isn’t clear that the pandemic “poses the kind of grave danger” contemplated in the statute authorizing the federal agency to regulate workplace safety.
“The mandate imposes a financial burden upon (private employers) by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” Judge Kurt Engelhardt wrote in a unanimous opinion.
“Rather than a delicately handled scalpel, the mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the mandate purports to address,” the court wrote.
Two of the judges who heard the case were nominated by President Donald Trump. A third was nominated by President Ronald Reagan.
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The court battles are focused on whether OSHA has the authority under a 1970 law to require companies to ensure workers are vaccinated or tested. Supporters say the move will reach millions of Americans in the workplace, expanding the number of people who are vaccinated against the coronavirus. Critics say COVID-19 isn’t a workplace safety issue, and that the administration’s use of the OHSA law is an overreach.
“This lawsuit concerns the latest attempt by the Biden administration to leverage the COVID-19 pandemic into a justification to reconfigure massive sectors of the American economy,” the plaintiffs argued in court papers, asserting that COVID-19 isn’t within the agency’s authority to regulate toxic “agents” or “substances.”
The administration countered the “risk-mitigation methods” it is seeking “will protect unvaccinated workers against the most serious health consequences of a COVID-19 infection and ‘reduce the overall prevalence’ of the COVID-19 virus ‘at workplaces.'”
The dispute will likely work its way up to the Supreme Court – but the timing of the appeals court proceedings isn’t yet clear. Federal law sets out an unusual procedure for consolidating lawsuits filed against a federal agency for such an emergency regulation and the appeals court that ultimately considers that merged case will be chosen at random.
The Biden administration had requested that the 5th Circuit wait to decide on issuing an injunction until the appeals court that will hear the merged case is selected.
The Justice Department said in a statement on Friday that the “decision is just the beginning of the process” and that the administration will “continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”
The Supreme Court has repeatedly turned away emergency appeals seeking to block the enforcement of vaccine mandates in other contexts. In August, it declined to halt Indiana University’s vaccine requirement. In early October, it declined to halt a New York City requirement that public school teachers receive COVID-19 vaccinations.
Most recently, the court late last month declined to block a vaccine mandate for health care workers in Maine over objections that it didn’t include a religious exemption.
Those cases all involved emergency efforts to temporarily put mandates on hold, not more fundamental questions about their constitutionality. They also involved state and local governments, which have broader public safety powers than the federal government.
‘This too shall pass away’ this famous Persian adage seems to be defeating us again and again in the case of COVID-19. Despite every effort