Federal appeals court okays COVID-19 vaccine mandate for companies

December 18, 2021
President Joe Biden speaks about the COVID-19 variant named omicron during a visit to the National Institutes of Health, Thursday, Dec. 2, 2021, in Bethesda, Md.
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WASHINGTON – A federal appeals court on Friday reinstated a Biden administration rule requiring large companies to mandate COVID-19 vaccines or implement testing, though the ruling is unlikely to be the final word on the matter.

The Cincinnati-based U.S. Court of Appeals for the 6th Circuit lifted another court’s order from November that blocked the mandate from taking effect. Businesses with 100 or more employees would be required under the rule to stand up vaccine or regular testing requirements by Jan. 4 or face penalties of nearly $14,000 per violation.

A 2-1 majority of the court found that OSHA was likely within its legal authority to implement the “emergency temporary standard” requiring vaccines or testing. 

“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,” Judge Jane Stranch wrote for the court.

Stranch, nominated by President Barack Obama, and Judge Julia Gibbons, nominated by President George W. Bush, made up the majority. Judge Joan Larsen, nominated by President Donald Trump, dissented from the court’s ruling.

“The Secretary of Labor lacks statutory authority to issue the mandate,” Larsen wrote.

The on-again-off-again handling of the mandate underscored how much lower federal courts have wrestled with legal questions surrounding COVID-19 vaccine requirements – an issue that will likely ultimately have to be decided by the Supreme Court. So far, the nation’s highest court has refused to block several local mandates.

President Joe Biden’s administration unveiled a series of mandates in November, including for large employers, federal contractors and health care workers. All of those rules have been put on hold by courts as lawsuits challenging them are reviewed.

More:Biden administration braces for a wave of legal challenges to COVID-19 rule

More:20 questions, answers on the new COVID-19 vaccine rules for workers

Court battles about the employer mandate have focused on whether the Occupational Safety and Health Administration has the authority under a 1970 law to require companies to ensure workers are vaccinated or tested. Supporters say the mandate would 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.

A panel of three Republican-appointed judges from the U.S. Court of Appeals for the 5th Circuit described the mandate as “staggeringly overbroad” on Nov. 12 and ordered that its implementation remain blocked in a divisive case likely bound for the Supreme Court.

But a flood of lawsuits challenging the federal rule were then consolidated in the 6th Circuit, a court that was drawn at random by federal judiciary officials. That court has the authority to lift the 5th Circuit’s order and it chose to do so on Friday.

The latest ruling doesn’t mean the vaccine-or-testing mandate goes into effect immediately: The Biden administration had given businesses until January to implement the order even before the lawsuits were filed. And there’s a good chance the 6th Circuit’s latest ruling will be appealed by a number of Republican state officials. 

The dispute will likely work its way up to the Supreme Court. The justices have 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.

More recently, the court declined in October to block a vaccine mandate for health care workers in Maine over objections that it didn’t include a religious exemption. And on Monday, the Supreme Court permitted a COVID-19 vaccine mandate for New York health care workers that doesn’t include a religious exemption.

Those cases all involved emergency efforts to temporarily put mandates on hold, not more fundamental questions about their constitutionality or other challenges to their legality. They also involved state and local governments, which have broader public safety powers than the federal government.  

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