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U.S. President Joe Biden departs after speaking about the authorization of Covid-19 vaccines for children ages 5-11 on November 3, 2021 in Washington, D.C.

U.S. President Joe Biden departs after speaking about the authorization of Covid-19 vaccines for children ages 5-11 on November 3, 2021 in Washington, D.C. (Photo: Drew Angerer/Getty Images)

'Pro-Death Cult Strikes Back': Right-Wing Judges Block Biden's Vaccine Rule for Big Companies

"It's terrible for worker safety and public health that three conservative activist judges have suspended Biden's... new rule requiring workers at companies with more than 100 workers to get vaccinated or tested."

Kenny Stancil

Progressives concerned about workplace safety and public health responded with dismay after a federal appeals court on Saturday temporarily blocked the Biden administration's attempt to require workers at companies with 100 or more employees to be vaccinated against Covid-19 or tested weekly.

"The judges evidently sympathize with Greg Abbott's let-people-die stance."

Citing "grave statutory and constitutional" problems with the rule, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit issued the stay in response to a joint petition filed Friday by a coalition of businesses, conservative advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah.

That legal challenge, and separate lawsuits from Republican-led states, came just one day after President Joe Biden announced that the Occupational Safety and Health Administration (OSHA) would begin enforcing its newly unveiled Emergency Temporary Standard (ETS) in the coming weeks. Companies with at least 100 employees have until December 5 to require unvaccinated workers to wear masks indoors, and by January 4, they must require vaccinations or administer weekly tests.

Decrying the decision of the "right-wing Fifth Circuit," labor journalist Steven Greenhouse said on social media that "it's terrible for worker safety and public health that three conservative activist judges have suspended Biden's... new rule requiring workers at companies with more than 100 workers to get vaccinated or tested."

"OSHA's mission is to protect workers' health," Greenhouse continued, "but the appellate judges seem to forget that Covid has killed thousands of meatpacking, retail, and other workers."

More than 750,000 people in the U.S. have died from Covid-19 since the pandemic started last March, and the disease continues to kill nearly 1,100 people per day, most of them unvaccinated, according to the U.S. Centers for Disease Control and Prevention (CDC).

Recent studies confirm that vaccines save lives. Last month, the U.S. Department of Health and Human Services analyzed the relationship between county-level inoculation rates and Covid-19 outcomes among U.S. seniors and found that vaccines helped ward off 265,000 infections, 107,000 hospitalizations, and 39,000 deaths during the first five months of 2021.

And in September, CDC researchers found that individuals in the U.S. who were not fully vaccinated last spring and summer were 11 times more likely to die after being infected with the coronavirus—and over 10 times more likely to be hospitalized—than those who were fully inoculated.

Greenhouse said that "the judges evidently sympathize with [Texas Republican Gov.] Greg Abbott's let-people-die stance—that it's overreach for OSHA to act strongly to protect workers from Covid."

David Michaels, a leader of OSHA during the Obama administration, also rebuked the federal appeals court, describing its decision as legally dubious and politically motivated.

"The same activist court that refused to stay Texas' law that permits bounty hunters to sue anyone who aids an abortion after six weeks of pregnancy has stayed an OSHA rule that is clearly within OSHA's authority, will save lives, and make workplaces safe," he told the New York Times.

According to the Times, "At the core of the legal challenge is the question of whether OSHA exceeded its authority in issuing the rule and whether such a mandate would need to be passed by Congress."

The newspaper reported:

The suit against the mandate stated that President Biden "set the legislative policy" of substantially increasing the number of Americans covered by vaccination requirements, and "then set binding rules enforced with the threat of large fines."

"That is a quintessential legislative act—and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety," the suit said. "Nowhere in OSHA's enabling legislation does Congress confer upon it the power to end pandemics."

Corporate executives asked, and the Biden administration agreed, to delay implementation of OSHA's new ETS "until after the New Year, citing concerns about worker shortages during the important holiday season," Reuters noted.

"We are fully prepared to defend this standard in court."

Solicitor of Labor Seema Nanda, meanwhile, said in a statement that the Labor Department, home to OSHA, is "confident in its legal authority" to issue vaccine requirements.

The vaccine rule for companies with 100 or more employees "applies to 84.2 million workers at 1.9 million private-sector employers," Reuters reported. "OSHA estimates that 31.7 million of [those] workers are unvaccinated and 60% of employers will require vaccinations, up from 25% today, resulting in another 22.7 million employees getting vaccinated."

Several million additional workers are covered by the Biden administration's vaccine mandate for employees of the executive branch, federal contractors, and staff at healthcare facilities that accept Medicare or Medicaid funding. OSHA officials say they are considering expanding the jab-or-test rule to include companies with fewer than 100 workers.

"The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," Nanda said. "We are fully prepared to defend this standard in court."

The Fifth Circuit panel's two-page order directs the Biden administration to respond to the request for a permanent injunction against the rule by 5 p.m. ET Monday.

As the Times noted, it remains unclear whether the court's stay "would be a procedural blip for the Biden administration or the first step in the unwinding of the mandate."

The newspaper explained that "after both sides have filed briefs, the court will decide whether to lift the temporary injunction, allowing the rule to proceed as planned, or whether to grant a permanent injunction. OSHA could then take the case to the Supreme Court."

While some legal experts argue that the Labor Department has the regulatory authority to compel private employers to protect the health of workers and the broader public through mandatory vaccination amid a deadly global pandemic, Josh Blackman, a professor at South Texas College of Law Houston, told Reuters that "there will be so much litigation it will never see the light of day."

Twenty-four attorneys general threatened to sue the Biden administration over the rule back in September, and several followed through immediately after it was published in the federal register on Friday.

In addition to the petition filed with the Fifth Circuit, attorneys general in 11 states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming—filed a lawsuit in the U.S. Court of Appeals for the Eighth Circuit. 

And in the U.S. Court of Appeals for the Eleventh Circuit, the states of Alabama, Florida, and Georgia sued, with Florida Republican Gov. Ron DeSantis saying at a press conference that "the federal government can't just unilaterally impose medical policy under the guise of workplace regulation."

Roughly 70% of U.S. adults are fully inoculated against Covid-19, and about 80% have received at least one shot, according to the CDC. Recent polling shows that a majority of U.S. adults favor Covid-19 vaccination requirements, with only about one-fifth to one-quarter of respondents opposed.

OSHA, Reuters pointed out, is "fighting history. The agency has issued 10 ETS over its 50 years. Of the six that were challenged in court, only one survived entirely intact."

Donald Verrilli, U.S. solicitor general during former President Barack Obama's administration, however, told the news outlet that the Biden administration "wouldn't move forward unless they thought that they could defend it legally... I think the constitutional challenges are all going to fail."


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