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U.S. Asks Sixth Circuit to Revive Biden’s Shot-or-Test Rule (3)

Nov. 23, 2021, 1:37 PMUpdated: Nov. 24, 2021, 1:22 AM

The Biden administration asked a federal appeals court in Cincinnati to lift another court’s order blocking OSHA’s emergency rule that requires large employers to ensure their workers are fully vaccinated against Covid-19 or tested for it at least weekly.

The administration petitioned the U.S. Court of Appeals for the Sixth Circuit on Tuesday to immediately dissolve the Fifth Circuit’s order freezing the shot-or-test regulation. The Occupational Safety and Health Administration has the authority to protect workers against Covid-19 despite the disease being caused by a virus that also exists outside the workplace, it said in the filing.

“Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace,” the administration said.

The Fifth Circuit imposed the stay Nov. 6, prior to the multi-circuit lottery that resulted in the Sixth Circuit hearing a consolidated case reviewing the rule.

OSHA finalized its contentious emergency standard earlier this month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule, which is set to last just six months in its current form, applies to employers with at least 100 workers.

The workplace safety agency estimated its rule will save the lives of more than 6,500 workers and prevent over 250,000 hospitalizations in the next six months.

Late Tuesday, a conservative advocacy group called The Job Creators Network filed its opposition to the Biden administration’s request, arguing the stay is needed to protect companies from the costs of the rule and employees who could lose their jobs for not getting vaccinated.

The group also accused the government of “strong-arming companies into compliance” with the rule, alleging that it’s insisted that private companies follow the rule despite the stay.

The White House has stepped “perilously close to the line of encouraging contempt of the Fifth Circuit’s order,” the Network’s lawyers contended.

OSHA said last week that it’s suspended any activities to implement the rule pending further litigation.

‘By Any Means Necessary’

An all-Republican three-judge Fifth Circuit panel said in a scathing Nov. 12 opinion maintaining its stay order that the OSHA rule is unlawful and probably unconstitutional.

The panel said the agency’s justification for the rule was “pretextual,” characterizing the regulation as an effort to “ramp up vaccine uptake by any means necessary” rather than to protect workers. It was a “transparent stretch” for the agency to regulate a virus that’s non-life-threatening and widely present in society, the judges said.

But Covid-19, the administration argued in its brief, is a particularly acute occupational hazard because employees gather and interact for extended periods in the workplace. There’s nothing novel about OSHA regulating diseases that also occur away from the job, as it does with blood-borne pathogens, and a provision of the Occupational Safety and Health Act expressly indicates that the agency can require “immunization,” government lawyers said.

The Biden administration also argued that the Fifth Circuit was off-base by contending that remaining unvaccinated is a non-economic activity such that the emergency regulation likely exceeded the federal government’s power under the U.S. Constitution’s Commerce Clause.

Commerce Power

The rule sets conditions for safely participating in employment, which is an economic activity, the administration said. The federal government is well within its commerce power to enforce laws and regulations for participating in that activity, from prohibiting business from discriminating against patrons based on race to requiring workers to wear safety gear, it said.

“This is particularly clear with respect to a rule that not only requires workplace health and safety precautions but that does so to stem the workplace transmission of a communicable disease that is devastating workers and has profound impacts on the national economy,” government lawyers said in the brief.

Nothing in the motion changes the “foundational failures” in the OSHA rule that the Fifth Circuit pointed out in its stay order, said Liberty Justice Center attorney Daniel Suhr, who represents BST Holdings, which sought the stay. The Sixth Circuit should send the case back to the Fifth Circuit for final resolution, Suhr said in a statement.

The Texas attorney general’s office, which also asked the Fifth Circuit for a stay, didn’t respond to phone and email requests for comment.

The case is In re: OSHA Covid Rule, 6th Cir., No. 21-07000, motion filed 11/23/21.

(Updated with Job Creators Network's filing.)

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; Andrew Harris at aharris@bloomberglaw.com

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