Bloomberg Law
Dec. 30, 2021, 9:19 PM

Biden Asks Supreme Court to Keep Vaccine-or-Test Rule in Force

Robert Iafolla
Robert Iafolla

The Biden administration asked the U.S. Supreme Court to reject calls to halt its Covid-19 shot-or-test rule for large employers while litigation against the measure proceeds at a federal appeals court in Cincinnati.

Federal workplace safety regulators properly determined that the coronavirus is a new hazard, exposure to it presents a grave danger to unvaccinated workers, and an emergency regulation was necessary to protect them from getting infected on the job, government lawyers told the justices in a brief Thursday.

The high court’s decision could determine the practical impact of the shot-or-test rule, which is set to expire in its current form in May. Employers have until Jan. 10 to comply with most of its requirements.

The court will hear oral argument at a special Jan. 7 session over whether to block the regulation. It’s also scheduled to hear arguments the same day on a separate request to halt the Biden administration’s vaccine mandate for health-care workers.

The Occupational Safety and Health Administration’s emergency standard requires employers with at least 100 workers to mandate vaccination or regularly test their employees. The measure, which covers more than 80 million workers, also calls on companies to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.

The agency issued the shot-or-test rule Nov. 5, but the U.S. Court of Appeals for the Fifth Circuit froze it with a Nov. 6 order. The Sixth Circuit, which took control of the consolidated case challenging the rule after winning a multi-circuit lottery, lifted the stay. That triggered requests for the Supreme Court to put the regulation back on ice.

A group of 27 states with Republican attorneys general and a coalition of 26 business organizations asked for a stay, arguing OSHA exceeded the powers Congress gave it and that the federal government lacks constitutional authority to issue such a broad regulation.

The court Thursday granted requests for divided arguments in the case, which will allow lawyers representing the state coalition and the alliance of business organizations to each appear at oral argument.

The case is NFIB v. DOL, U.S., No. 21A244, brief filed 12/30/21.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; John Lauinger at