U.S. Urges Court Not to Block Vaccine Mandate on Employers

WASHINGTON — The Biden administration on Monday argued that the federal government had all the power it needed to require large employers to mandate vaccination of their workers against the Covid-19 virus — or to require those who refuse the shots to wear masks and submit to weekly testing.

In a 28-page filing before the United States Court of Appeals for the Fifth Circuit, which temporarily blocked the mandate with a nationwide stay last week, the Justice Department argued that the rule was necessarily to protect workers from the pandemic and was well grounded in law.

Keeping the mandate from coming into effect “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs,” the Justice Department said in its filing. “That is a confluence of harms of the highest order.”

The Occupational Safety and Health Administration, part of the Labor Department, issued the standard last week. The rule would force companies with at least 100 employees to require unvaccinated employees to wear masks indoors starting Dec. 5. Employees who remain unvaccinated by Jan. 4 would have to undergo weekly testing at work.

A coalition of plaintiffs — including several employers, and Republican-controlled states — have challenged the mandate in court. Their lawsuit argued that the mandate is an unlawful overreach that exceeds the authority Congress has legitimately delegated to OSHA.

The agency, several of the plaintiffs argued in a 20-page filing on Nov. 7, is an occupational safety organization with limited jurisdiction to protect workers from dangerous workplace substances like asbestos — “not a public health agency with wide-ranging authority to address communicable diseases through regulation.”

They also argued that raising concerns about workplace safety was just a “pretext” for the Biden administration’s real agenda — pressuring more Americans to get vaccinated.

Last week, a three-judge panel on the Fifth Circuit temporarily blocked the new standard, saying in a terse unsigned opinion that the challengers had given “cause to believe there are grave statutory and constitutional issues with the mandate.”

The Fifth Circuit panel will now decide whether to lift its decision to block the mandate or make it permanent. But it is unlikely to have the final word.

Some other legal challengers to the mandate are in different appeals court circuits, and the many pending challenges are expected to be consolidated before a randomly assigned appeals court later this month.

A Federal District Court judge in the District of Columbia separately declined on Monday to block the rule, and the issue is very likely to end up before the Supreme Court.

Part of the Justice Department’s filing pointed to the process of randomly selecting an appeals court to consolidate the cases from across the country — and the fact that the deadlines for the mandate have not yet kicked in — as a reason for the Fifth Circuit to restrain itself. But other portions of the filing served as a preview of the administration’s broader arguments.

The filing argued that OSHA had properly determined that potential exposure to the virus raised a “grave danger” to workers, in line with the standard Congress had laid out in the law. It also rejected the challengers’ contention that steps to reduce the risk of infection by a disease fell outside the sorts of workplace hazards that the agency had the power to regulate.

The Justice Department wrote that “the statutory text is unambiguous and limited to addressing grave dangers to employees in the workplace. Like many other areas of regulation, workplace-safety regulations may affect many Americans and may touch on issues about which some people disagree. But that does not automatically compel a circumscribed interpretation of a deliberately broad congressional grant.”

Karine Jean-Pierre, the principal deputy White House press secretary, said on Monday that it was routine for administration policies to face legal challenges and urged employers not to wait for the litigation to be completed before requiring their workers to get vaccinated — as some already have — or begin submitting to weekly testing.

Noting that more than 750,000 Americans have died from Covid-19, with about 1,300 new deaths each day in the United States, she argued that the mandate was about protecting workers from the risk that they will be infected by the coronavirus.

“This is an authority that we believe the Department of Labor has — we are very confident about it,” she said, adding: “This is about keeping people safe in the workplace, and it’s critical and it’s important to do.”

The White House announced in September that the federal government would issue and encourage a series of vaccination mandates, including ones for federal workers, employees of federal contractors, and recipients of federal funding.

“We’ve been patient,” Mr. Biden said at the time, referring to some 80 million Americans who have refused to get vaccinated, increasing the risk that the coronavirus finds new hosts to keep spreading through. “But our patience is wearing thin. And your refusal has cost all of us.”

The litigation focuses on the part of Mr. Biden’s mandate plan that applies to companies that employ more than 100 workers. It relies on an emergency provision of the Occupational Safety and Health Act of 1970, which empowers the federal government to regulate workplaces to protect worker safety.

At Mr. Biden’s direction, OSHA developed an “emergency temporary standard” based on a claim that workers face a “grave danger” at work from the virus and that mandating vaccinations or frequent testing is a necessary and feasible way for employers to reduce the danger of serious illness, hospitalization or death.

The rule makes an exception for employees who do not come into close contact with other people at work, such as those who work at home or exclusively outdoors.

The agency published the standard on Nov. 4, and the plaintiffs filed the lawsuit the next day.

If the courts ultimately allow the rule to go into effect, OSHA would be empowered to collect reports of violations and send inspectors to examine workplaces, backed by fines that start at $13,650 per violation and can escalate to up to $136,500 per violation for willful or repeated offenses.

In June, OSHA used the same authority to impose an emergency rule targeting health care employers. It required them to provide workers with protective equipment like masks and to ensure adequate ventilation and distancing, among other measures. But the agency has not previously used that power to impose a broad vaccine mandate on all large employers.

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