A federal appeals panel on Friday reinstated a Biden administration rule requiring that many companies mandate their workers be vaccinated against the coronavirus or face weekly testing.
The decision, by a split three-judge panel of the Court of Appeals for the Sixth Circuit in Cincinnati, overturned a ruling by its counterpart in New Orleans, the Fifth Circuit, that had blocked the rule last month.
Issued by the Occupational Safety and Health Administration, the rule is expected to make its way to the Supreme Court. It has faced a wave of lawsuits from businesses, trade groups and states. The Biden administration has encouraged companies to move forward despite that uncertainty, particularly given the mounting threat of the Omicron variant and a surge of new cases across the country.
The rule, which President Biden first announced in September, orders that businesses with at least 100 employees have until Jan. 4 to mandate Covid vaccinations for their workers. They are also allowed, but not required unless the worker has an exemption for medical or religious reasons, to give their workers the option to be tested weekly.
OSHA has the authority to pass an “emergency temporary standard” provided it can show that workers are exposed to a “grave danger” and that the rule is necessary. The Sixth Circuit panel said on Friday that the agency had sufficiently demonstrated that the coronavirus pandemic meets that standard.
“OSHA explains why the mechanics of Covid-19 transmission make our traditional workplaces ripe for the spread of the disease, putting workers at heightened risk of contracting it,” wrote Judge Jane B. Stranch.
She added that the ruling cites “the possibility of new variants” to support OSHA’s argument that the current situation is a pervasive emergency, noting that the possibility of new variants cited by the agency when it issued the rule “has borne out with the Omicron variant.”
A three-judge panel of the Fifth Circuit in New Orleans — all conservative Republican appointees — had previously blocked the rule, arguing that the agency had exceeded its authority. But the case was then reassigned to the Sixth Circuit, which was randomly chosen to consolidate numerous challenges against the rule filed around the country.
In deciding to remove the block that the Fifth Circuit had put in front of the rule, Judge Stranch, an Obama appointee, was joined by Judge Julia Smith Gibbons, who was appointed by President George W. Bush.
Judge Joan L. Larsen, a Trump appointee, dissented, arguing — as had the Fifth Circuit panel before her — that the agency had exceeded the authority granted to it by Congress.
“The mandate is aimed directly at protecting the unvaccinated from their own choices,” Judge Larsen wrote. “Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the secretary likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.”
This article will be updated.
Charlie Savage contributed reporting.