Feds push back against Florida's challenge to the OSHA vaccine mandate

Biden administration attorneys late Friday urged a federal appeals court to reject a request by Florida, Georgia and Alabama to put on hold a rule that would require tens of millions of workers nationwide to be vaccinated against COVID-19 or be regularly tested and wear masks.

In a 26-page document filed at the 11th U.S. Circuit Court of Appeals, federal attorneys said the rule, issued this month by the Occupational Safety and Health Administration, is expected to save thousands of lives.

“OSHA properly determined that employees gather in one place and interact, thus risking workplace transmission of a highly contagious virus that spreads — and creates grave danger — inside the workplace,” the document said.

Florida, Georgia and Alabama and other plaintiffs, including two Florida Christian schools, contend that OSHA overstepped its legal authority with the rule, known as an “emergency temporary standard.” With the rule scheduled to take effect Jan. 4, they have asked the Atlanta-based appeals court to issue a stay that would put the requirements on hold while the legal battle continues.

The rule would apply to employers with 100 or more workers. Those workers would have to be fully vaccinated against COVID-19 or test negative at least once a week and wear masks — a measure that would cover 84 million workers nationally, according to a White House estimate.

The rule quickly drew legal challenges across the country, and the 5th U.S. Circuit Court of Appeals — which hears cases from Louisiana and Mississippi — issued a ruling Friday that reaffirmed a stay it had imposed.

Lawyers for the federal Justice and Labor departments said stopping the mandate would prolong the pandemic and “cost dozens or even hundreds of lives per day.” In rejecting that argument, Judge Kurt D. Engelhardt wrote the stay “is firmly in the public interest.”

In a motion last Monday, lawyers from Florida Attorney General Ashley Moody’s office asked the 11th U.S. Circuit Court of Appeals to also issue a stay.

“The ‘emergency temporary standard’ OSHA issued is neither a workplace standard nor is it a response to an emergency,” the motion said. “It is, rather, a backdoor attempt to dictate the personal health decisions of millions of ordinary Americans, many of whom have deeply personal reasons to decline to be vaccinated.”

In the filing late Friday, attorneys from the U.S. Department of Justice and the U.S. Department of Labor argued there is no need to rule immediately on the stay request by Florida, Georgia and Alabama. It said challenges have been launched in 11 federal appellate circuits and that what is known as the Judicial Panel on Multidistrict Litigation is expected next week to consolidate the cases in one circuit.

“The court chosen to adjudicate these matters will have sufficient time to rule on any preliminary motions,” the federal attorneys wrote. “To conserve judicial resources and avoid trenching upon the authority of another court that may receive the case, this (11th Circuit) court should decline to act in this current posture.”

The document, however, also defended the legality of the underlying rule and pushed back against criticism that it will require all workers at the affected employers to be vaccinated.

“OSHA properly exercised its discretion to offer an alternative whereby employees can be ‘regularly tested for COVID-19 and wear a face covering,’ the document said, partially quoting from the rule. “The standard provides employers with this choice because they are better positioned to determine which approach will ‘secure employee cooperation and protection.’ OSHA thus crafted an approach that protects unvaccinated workers while leaving leeway for employers to determine the most appropriate option for their workplaces.”

Gov. Ron DeSantis has made a high-profile issue of pushing back against the Biden administration on COVID-19 requirements. He has called a special legislative session that will start Monday and focus on taking steps to prevent vaccine and mask mandates.

In part, DeSantis contends that imposing vaccination requirements could lead some workers to lose jobs.

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