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U.S. Rebuts Arguments Against Lifting Shot-or-Test Rule Stay

Dec. 13, 2021, 5:26 PM

Opponents of the Biden administration’s emergency Covid-19 shot-or-test rule ignored its benefits when they argued against dissolving a court order blocking a measure that will save an average of 77 lives per day, government lawyers said in a brief.

The administration told the U.S. Court of Appeals for the Sixth Circuit that the regulation will help employers by reducing the frequency of coronavirus infections in the workplace in exchange for “modest” costs to implement it. The Fifth Circuit, which blocked the rule Nov. 6, ignored all of the standard’s benefits, government lawyers said in a brief filed late Friday.

The parties have fully briefed the issue of whether to lift the Fifth Circuit’s stay order, setting up a ruling from the Sixth Circuit on whether to let the rule take effect or to keep it halted as litigation on the merits of the measure proceed. The Sixth Circuit controls judicial review of the rule after winning a multi-circuit lottery.

The Occupational Safety and Health Administration finalized its emergency standard last 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. Those employers must mandate that their workers either get vaccinated against Covid-19 or get tested regularly.

Republican state attorneys general, business alliances, companies, and other groups have sued to strike down the measure. They pressed the Sixth Circuit last week to keep the stay in place.

The top lawyers of Texas, Florida, and 25 other states argued it’s an unprecedented exercise of power that ultimately will be deemed unlawful. The administration’s description of the risks posed by coronavirus infections “is just another way of describing dangers humans face as a result of being alive,” they said.

But the administration responded in its brief that workplace dangers have long included the risk of contracting communicable diseases. The Occupational Safety and Health Act authorizes OSHA to set safety and health standards, which can include vaccination even though getting inoculated also has benefits outside of the workplace, government lawyers said.

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

Complying with Mandates

More than two dozen industry associations focused on business costs when they argued for keeping the stay in place. The rule would lead to workers quitting at the “worst possible time,” as retailers are getting ready for the holiday season, the groups said.

“The threat to human life and health,” the Biden administration responded, “also vastly outweighs petitioners’ guesswork about the number of workers who may quit rather than get vaccinated or tested.”

Challengers offered “flimsy” evidence to back their claims of impending quits, relying mainly on declarations by employers stating their beliefs that workers would leave and by a few workers asserting they’d rather lose their jobs than comply with the rule, the administration said.

That type of worker attrition hasn’t happened when employers have imposed vaccine mandates, government lawyers said, pointing to data of near-total employee compliance with requirements at United Airlines (99.7%), Tyson Foods (96%), and the federal government (97.2%).

“And these statistics are for employers that require vaccination, whereas the Standard permits employers to offer masking and testing instead,” the administration said.

The case is In Re: OSHA Covid Rule, 6th Cir., No. 21-07000, Brief filed 12/10/21.

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; Martha Mueller Neff at mmuellerneff@bloomberglaw.com