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Biden administration asks court to lift pause

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U.S. President Joe Biden speaks in the Eisenhower Executive Office Building in Washington, D.C., U.S., on Thursday, Oct. 14, 2021.

Al Drago | Bloomberg | Getty Images

The Biden administration on Tuesday asked a federal appeals court to immediately lift an order halting its Covid vaccine and testing requirements for private businesses, warning that delaying implementation would cost lives and lead to increased hospitalizations.

The Justice Department told the U.S. Court of Appeals for the Sixth Circuit that “the threat to workers is ongoing and overwhelming” as offices reopen and the highly transmissible delta variant spreads.

“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses. That is a confluence of harms of the highest order,” the Justice Department argued in its motion.

The Biden administration asked the court to at least permit the masking and testing requirements for unvaccinated workers to remain in effect as a stop-gap measure as the litigation plays out.

“Although vaccination is the most effective means of mitigating the grave danger of COVID-19 in the workplace, masking and testing for unvaccinated employees is a reasonably effective alternative,” the administration told the court.

The U.S. is reporting about 95,000 new infections daily on average, an increase of 14% compared to the week prior, according to data from Johns Hopkins University. More than 1,100 people die a day from the virus in the U.S. on average, according to Hopkins.

About 50,000 Americans are currently hospitalized with Covid-19, according to a seven-day average of Department of Health and Human Services data through Monday, up 6% over the past week.

The Biden administration was forced to halt implementation and enforcement of its vaccination and testing policy in response to an order from the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative appellate courts in the country. Judge Kurt D. Engelhardt, in an opinion for a three-judge panel, said the policy was “fatally flawed” and “staggeringly overbroad,” raising “serious constitutional concerns.”

More than two dozen lawsuits have been filed against the Biden policy. Republican attorneys general, private companies, and industry groups such as the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business want the requirements overturned. Labor unions have sued asking courts to expand the requirements to cover smaller businesses and protect more workers.

Those lawsuits were transferred to the Sixth Circuit last week after the Biden administration asked a multidistrict litigation panel to consolidate the cases in a single court through random selection. The Biden administration is now requesting that the Sixth Circuit Court of Appeals, based in Ohio, end the pause ordered by the Fifth Circuit in Louisiana.

The Justice Department, in its motion Tuesday, dismissed the Fifth Circuit’s constitutional concerns as “meritless,” arguing that requiring business to protect employees from workplace dangers does not exceed the federal government’s authority under the Commerce Clause of the Constitution.

The Biden administration also told the Sixth Circuit that the Occupational Safety and Health Administration, which developed the rules under emergency powers, acted well within its authority under the statute established by Congress.

OSHA, which polices workplace safety for the Labor Department, can shortcut the normal rulemaking process if the Labor secretary determines that a new workplace safety standard is necessary to protect workers from a grave danger. The White House has repeatedly said that the virus clearly poses a grave danger to workers, pointing to the staggering death toll and high rates of transmission across the country.

The Biden policy required businesses with 100 or more employees to ensure their staff were vaccinated or undergo weekly Covid testing by Jan. 4. Unvaccinated employees were required to start wearing facemasks indoors at the workplace starting Dec. 5.

Regardless of what the Sixth Circuit decides, legal experts believe the case will ultimately end up in the Supreme Court.


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