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American Medical Association Defends Biden’s Shot-or-Test Rule

Nov. 11, 2021, 9:18 PM

The American Medical Association, the biggest U.S. association of doctors and medical students, told a federal appeals court that the Biden administration’s shot-or-test mandate for big businesses is needed to protect workers’ health and safety.

“Workplace transmission has been a major factor in the spread of COVID-19,” attorneys for the Chicago-based association said in a proposed friend-of-the-court brief submitted to the U.S. Court of Appeals for the Fifth Circuit. “The more workers who get vaccinated, the closer we are to slowing the spread of the virus and creating a safer environment.”

The panel hasn’t yet accepted the submission for filing.

Earlier this month, the New Orleans-based court temporarily put on hold the Occupational Safety and Health Administration’s mandate, which requires all U.S. businesses with 100 or more workers to ensure they’re all fully vaccinated against Covid-19 or tested for the virus at least weekly, starting Jan. 4.

The court’s Nov. 6 provisional order came in response to petitions filed by business owners and, later, by states including Texas, Louisiana, and Mississippi. A three-judge panel said the OSHA rule gives cause, “to believe there are grave statutory and constitutional issues” that warranted it being stayed pending further order of the court.

Lawsuits seeking to strike down the safety agency’s emergency temporary standard have also been filed at regional U.S. appellate courts in Boston, New York, Philadelphia, Richmond, Cincinnati, Chicago, St. Louis, San Francisco, Atlanta, and Washington, D.C. The Fifth Circuit is thus far the only one to have acted on a stay request.

Justice Department lawyers have told the New Orleans court that its stay should be vacated in deference to a federal judicial panel lottery that will choose which of those courts will hear the various challenges. The lottery is set for Nov. 16.

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

Republican-led states and business owners have argued that OSHA’s measure, which was advanced through an expedited format, exceeds the agency’s statutory authority, and that such a regulation can only be enacted through the full-notice-and-comment process typically used for major regulatory pronouncements. They also contend that the emergency rule harms big businesses’ hiring, putting them at a disadvantage when compared with smaller competitors not subject to the rule.

OSHA formally published the measure Nov. 5, citing the “grave danger” posed by the pandemic, which began nearly two years ago.

While opponents of the rule dispute whether the contagion still rises to that level, AMA attorneys told the Fifth Circuit that it does, citing the deaths of more than 750,000 people and the hospitalization of more than 3.2 million since its onset.

“This public health crisis has been particularly devastating in the states within this Circuit: Mississippi has suffered more deaths per 100,000 residents than any other state since the pandemic began; Louisiana the fourth most,” the AMA’s attorneys said.

The case is BST Holdings v. OSHA, 5th Cir., 21-60845, brief filed 11/11/21

To contact the reporter on this story: Andrew Harris in Washington at aharris@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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