People shout slogans against the government as they arrive to the City Hall in protest of COVID-19 vaccine mandate in New York City, October 25, 2021.
Eduardo Munoz | Reuters
A federal appeals court with a GOP-appointed majority will decide the fate of President Joe Biden’s vaccine and testing requirements for private businesses, casting further doubt on the survival of a policy the White House says is central to the fight against Covid-19.
More than two dozen lawsuits challenging the Biden policy were consolidated into one in the U.S. Court of Appeals for the Sixth Circuit on Tuesday. Former Presidents George W. Bush and Donald Trump appointed 11 of the 16 judges on the bench, while former Presidents Bill Clinton and Barack Obama appointed five.
The case against the Biden administration’s policy will be heard before a three-judge panel, but it is widely expected to ultimately be decided by the Supreme Court.
The U.S. Court of Appeals for the Fifth Circuit had already delayed the vaccine and testing requirements while it reviews their legal standing. Judge Kurt D. Engelhardt, in an opinion issued Friday, said the policy was “fatally flawed” and raised serious constitutional concerns.
However, the Biden administration filed a request on Tuesday for the multidistrict litigation panel to consolidate the lawsuits in a single court through random selection.
The Sixth Circuit will now decide whether to permanently halt the new workplace safety rule from the Occupational Safety and Health Administration.
Republican attorneys general in at least 26 states filed lawsuits against the vaccine and testing requirements, as have private companies and major industry groups such as the National Retail Federation, the American Trucking Associations and National Federation of Independent Business.
Labor unions, meanwhile, are suing to expand the requirements to cover smaller businesses. The United Food and Commercial Workers International Union, the AFL-CIO and the Service Employees International Union filed petitions last week.
The Biden administration warned in its response before the Fifth Circuit last week that halting the requirements “would likely cost dozens or even hundreds of lives per day” as Covid spreads. The White House has repeatedly said the virus poses a grave danger to workers, pointing to the staggering death toll and high rates of transmission in counties throughout the U.S.
The Labor and Justice departments have maintained that OSHA, which issued the new rules, acted well within its authority as established by Congress.
Under the policy, businesses with 100 or more employees have until Jan. 4 to ensure their staff are fully vaccinated with two doses of Pfizer’s or Moderna’s vaccine or one dose of Johnson & Johnson’s. After that date, unvaccinated employees must submit a negative Covid test weekly to enter the workplace. Unvaccinated workers must start wearing masks indoors at the workplace beginning Dec. 5.
OSHA issued the vaccine and testing requirements through a little-used emergency authority, which allows the agency to shortcut the normal rule-making process if the Labor secretary determines a new workplace safety standard is necessary to protect workers from a grave danger.
Prior to the pandemic, OSHA had not issued an emergency safety standard since 1983. The courts have halted or overturned four of the 10 emergency standards issued by the agency prior to the vaccine and testing requirements. A fifth such standard was partially vacated.
David Vladeck, a professor of law at Georgetown University, told CNBC that there’s a “high probability” the case could ultimately end up before the Supreme Court, where there’s a conservative majority.