A Biden administration rule — that requires workers at companies with 100 or more employees to be vaccinated against COVID or undergo weekly testing, starting Jan. 4 — is back on.
In a 2-1 decision, the 6th Circuit Court of Appeals lifted a stay on the rule Friday evening. The rule was blocked on Nov. 6, just one day after it was formally issued by the federal Occupational Safety and Health Administration.
The decision is not expected to be the final word. Already, a motion requesting a new emergency stay has been filed with the U.S. Supreme Court.
In dozens of lawsuits around the country, 27 Republican-led states, along with businesses, religious groups and some individuals charged the Biden administration with overreach.
Among their arguments: OSHA does not have the legal authority to issue a rule regarding a society-wide health concern that goes far beyond the workplace. Even if reducing the risk of COVID is compelling, it is not necessarily a "grave danger," as OSHA has declared it to be, they said. In addition, they argued that complying with the rule would be costly and could lead to worker shortages.
The appellate panel's majority found these injuries asserted by the petitioners to be "entirely speculative," and the costs of delaying implementation of the rule to be comparatively high.
"Fundamentally, the [rule] 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," wrote Circuit Judge Jane B. Stranch, an Obama appointee.
"The harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy," she said.
Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, wrote:
“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace, Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace.”
Gibbons noted that the agency's authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
The dissent came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.
Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”
The case was consolidated in the 6th Circuit, which is dominated by Republican-appointed judges. Earlier in the week, the circuit's active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.
The White House welcomed Friday's decision, reiterating that the rule will ensure businesses will enact measures to protect employees.
In a statement, it pointed out that the highly transmissible omicron variant makes it "critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment."
OSHA had estimated that the vaccine-or-test rule could save more than 6,500 lives and prevent over 250,000 hospitalizations in the six months that it would be in effect.
In addition to the vaccine and testing requirements that are set to take effect Jan. 4, the rule requires companies to determine who among their workers are vaccinated and who are not, and to enforce a mask mandate for unvaccinated workers starting Dec. 6. It's unclear now whether that takes effect immediately.
Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation's highest court.
The ruling is a big victory for the Biden administration vis a vis private employers.
Earlier this year, companies that implemented vaccine mandates on their own saw a dramatic uptake of vaccinations among their workers. Tyson Food and United Airlines reached vaccination rates of more than 95%. Neither offered their employees a testing option.
The Biden administration's attempts to similarly mandate vaccines for health care workers and federal contractors are currently held up in courts. Its mandate covering health care workers at facilities that receive Medicaid or Medicare funding remains blocked in about half the states, while its mandate for federal contractors remains blocked nationwide.
Information from the Associated Press was used in this report.
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