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Order Halting Vaccine-or-Test Rule Is Premature, U.S. Says (1)

Nov. 8, 2021, 11:27 PMUpdated: Nov. 9, 2021, 12:18 AM

The Biden administration asked a federal appeals court to lift the temporary order blocking its regulation requiring large employers to mandate that their workers get Covid-19 vaccinations or submit to regular testing, arguing that there’s no emergency that requires the rule to be immediately suspended.

The companies that won an emergency stay from the U.S. Court of Appeals for the Fifth Circuit claim no major prospect of harm from the rule until early December, or about a month before the standard’s Jan 4. compliance date, the administration said in a brief Monday.

“Accordingly, there is no need to address petitioners’ stay motions now, and the Court should lift its administrative stay and allow this matter to proceed under the process that Congress set forth for judicial review of OSHA standards,” administration lawyers argued.

The Occupational Safety and Health Administration’s regulation issued last week applies to companies with at least 100 workers. The agency developed the rule under its authority to create emergency temporary standards that are necessary to address a “grave danger.”

The rule was met with a wave of lawsuits from Republican state attorneys general, companies, business groups, and others. Thus far challengers have filed at least 12 petitions seeking review of the OSHA rule in six different circuit courts, and more are expected.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

As per federal rules for multi-circuit litigation, those cases will be consolidated and heard by one circuit court initially chosen by a lottery. While circuit courts can rule on stay requests, the court that wins the lottery can lift those previous orders.

The Fifth Circuit granted the request for a group of businesses led by BST Holdings to halt the rule in a Nov. 6 order.

The lottery process is set to happen Nov. 16, which is 21 days before the date that BST claimed was the earliest date that any worker would need a vaccine and 51 days before mandatory testing would start, the Biden administration said in its brief.

BST’s attorney, Sarah Harbison of the Pelican Institute for Public Policy, declined to comment, saying she hadn’t read the administration’s brief.

The case is
BST Holdings v. OSHA, 5th Cir., No. 21-60845, opposition to emergency stay filed 11/8/21.

(Updated with additional context, reporting.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com