Biden seeks to revive workplace vaccine mandate

The Biden administration on Tuesday asked a federal court to reinstate a workplace vaccine mandate that was put on hold earlier in November, as officials seek to boost vaccination numbers heading into the winter months.

In court papers filed overnight, the administration urged a Cincinnati-based federal appeals court to lift a court order blocking the public health rule, which requires larger businesses to have employees receive the COVID-19 vaccine or undergo regular testing and mask-wearing.

“Delaying this standard would endanger many thousands of people and would likely cost many lives per day,” government lawyers argued. “With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”

The move comes amid an uptick of COVID-19 cases nationwide as the U.S. heads into its second holiday season during the pandemic, with many families that may have skipped gatherings last year now planning to gather this Thanksgiving.

The Tuesday filing is the most significant legal move the administration has made since the vaccine mandate case was moved earlier this month to the U.S. Court of Appeals for the 6th Circuit, where numerous legal challenges have been combined into a single lawsuit.

President Biden announced in September that the administration was rolling out a new rule that would require all private employers with 100 or more employees to mandate vaccines or weekly testing for all personnel, a guideline that has the potential to impact nearly 80 million workers.

The administration, through the Occupational Safety and Health Administration (OSHA), issued its six-month emergency vaccinate-or-test requirement in early November, sparking immediate legal challenges from states, employers and religious groups.

The extensive Tuesday court submission filed by OSHA, which came in a lengthy 55-page brief, underscored just how important this round of litigation is to the mandate’s long-term prospects, legal experts said.

“Because the emergency standard can only be in effect for six months, its fate rests mostly on the outcome of this stay motion,” said Sean M. Marotta, a partner at the law firm Hogan Lovells.

Although the workplace mandate for the private sector has been ensnared in court fights almost since its inception, a similar mandate for the federal workforce has been seen as largely successful. More than 90 percent of federal workers had received at least one shot of a COVID-19 vaccine as of the Monday deadline, according to White House figures.

In an earlier stage of litigation over the private-sector mandate, the New Orleans-based U.S. Circuit Court of Appeals for the 5th Circuit temporarily blocked, or stayed, the rule in an order that is now the subject of the government’s latest filing.

The 5th Circuit ruling called the mandate “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction.

The case has since been moved to the 6th Circuit after a Washington, D.C., judicial panel selected the Cincinnati-based court from the nation’s 12 regional federal appeals courts and merged the litigation into one lawsuit.

OSHA said in a statement last week that while it is confident in its power to protect workers amid the pandemic, it is suspending activities related to the mandate, citing the pending legal challenge.

Biden administration officials have argued that the mandate is necessary to boost vaccination rates. To date, the pandemic has killed more than 770,000 people in the U.S.