New Orleans-based court says Covid-19 vaccination and testing rules raise grave legal issues
By Brent Kendall and Sabrina Siddiqui Wall Street Journal, Nov. 7, 2021
A federal appeals court on Saturday temporarily blocked the Biden administration’s new rules that require many employers to ensure that their workers are vaccinated or tested weekly for Covid-19.
A three-judge panel on the New Orleans-based Fifth U.S. Circuit Court of Appeals granted an emergency stay prohibiting enforcement of the rules for now, saying they raise “grave statutory and constitutional issues.”
The Fifth Circuit said it would quickly consider whether to issue an injunction against the vaccine and testing requirements, ordering the Biden administration to file initial legal papers by late Monday afternoon.
The rules, issued by the Labor Department on Thursday, apply to employers with at least 100 workers. Lawsuits challenging the requirements have been filed in courts around the country. Challengers in the case before the Fifth Circuit include both private employers and a group of Republican state attorneys general.
Seema Nanda, the Labor Department’s top legal adviser, said the administration was confident in its authority to issue the standard and was fully prepared to defend it in court.
“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,” Ms. Nanda said in a statement.
White House chief of staff Ron Klain said Sunday he thought the administration’s legal justification for the vaccine mandate was solid and that he was “quite confident that when this gets fully adjudicated” in court, the administration’s order would stand.
“It’s common sense,” Mr. Klain said on NBC. “If OSHA can tell people to wear a hard hat on the job, to be careful with chemicals, it can put in place these simple measures to keep our workers safe.”
Brandon Trosclair, a litigant in the case who employs nearly 500 workers in 15 grocery stores, said in a statement that Saturday’s decision was “a great first step” that “realized that the Biden employer vaccine mandate would cause great harm to businesses like mine.”
Challengers are mounting several different legal arguments against the requirements, including a claim that OSHA is improperly exercising powers that can only be invoked by Congress.
The Fifth Circuit is one of the nation’s most conservative appeals courts. The three judges who issued Saturday’s ruling were appointed by Republican presidents.
Under the Biden administration requirements, first announced by the president in September, businesses with 100 or more employees must ensure that workers are either fully vaccinated against Covid-19 or tested weekly by Jan. 4.
Employers aren’t required under the new policy to provide or pay for tests, with potential exceptions if collective bargaining agreements compel them to do so. In addition to producing a weekly negative test, unvaccinated employees must also wear a mask in the workplace.
Employers who don’t comply with the requirements could face penalties of up to around $13,600 per violation. The requirements don’t apply to employees who don’t report to a workplace where other individuals are present, employees who only work from home, or employees who work exclusively outdoors.
Mr. Biden said he was reluctant to issue vaccine requirements but said he felt he had exhausted other options after some Americans refused to get vaccinated despite a monthslong campaign by the administration promoting the shot.
The White House has repeatedly expressed confidence in the legality of the vaccine requirements.
“This is about saving people’s lives…and making sure that their workplace is safe,” White House deputy press secretary Karine Jean-Pierre told reporters Friday.