Government: Vaccine rule should remain while cases play out

The Biden administration framed its vaccine mandate for larger private employers in life-and-death terms Monday in a legal filing that sought to get the requirement back on track after it was halted by a federal court.

Its filing in response to a stay issued over the weekend by the New Orleans-based 5th U.S. Circuit Court of Appeals said there is no reason to rush into a ruling on whether the halt should be made permanent because the vaccine mandate won’t take effect until Jan. 4. Stopping the mandate from taking effect will only prolong the COVID-19 pandemic and would “cost dozens or even hundreds of lives per day,” lawyers for the Justice and Labor departments said.

As of Sunday, the seven-day rolling average for daily new deaths in the U.S. was 1,151, but it’s not clear what role a future vaccine mandate for private businesses would play in reducing that figure.

The mandate would apply to private businesses with more than 100 workers. Employees who do not receive the shots by Jan. 4 would be required to wear a mask and be tested weekly for the coronavirus. Occupational Safety and Health Administration rules issued last week create exemptions for workers citing religious objections and for those who do not interact in-person with coworkers or customers, as well as those who work only outdoors.

More than two dozen Republican state attorneys general, businesses, religious groups and conservative associations sued on the grounds that the federal government does not have the right to make the regulation, partly because COVID-19 is not a workplace-specific danger.

The Biden administration lawyers argued the risks were greater without the mandate than with it: “Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds,” they wrote.

At least 27 states filed legal challenges in at least six federal appeals courts after OSHA released its rules last week. All the states have a Republican governor or attorney general.

Over the weekend, judges on the New Orleans-based federal court paused the rule from taking effect, saying it raises “grave statutory and constitutional issues” and told the federal government to explain why the stay should not be made permanent.

The federal government said in its court filings Monday that the cases should be consolidated and that one of the circuit courts where a legal challenge has been filed should be chosen at random on Nov. 16 to hear it.

Administration lawyers said there is no reason to keep the vaccine mandate on hold while the court where the cases ultimately land remains undetermined. Besides, they argued, no employee will have to get a shot to comply until early December.

White House spokeswoman Karine Jean-Pierre expressed confidence that the COVID-19 vaccine mandate can withstand the legal challenges.

“This is an authority that we believe the Department of Labor has,” Jean-Pierre told told reporters during a news briefing. “We are very confident about it.”

Jean-Pierre said the mandate was about keeping people safe and that Congress had empowered the Labor Department to act with the Occupational Safety and Health Act of 1970. Vaccine mandates, including those for certain federal employees, contractors and the military, are a key component of the Biden administration’s strategy for containing a pandemic that has killed 755,000 people in the U.S.

It has said that widespread vaccinations are the quickest way out of the pandemic. But employers have pushed back, saying they fear the mandate would lead many of their workers to quit.

At a news conference Monday in Concord, New Hampshire, the president of Keller Companies, a manufacturer of building panels and plastics with 350 employees, described the OSHA rule as a “crushing blow to employers.”

Kathy Garfield, whose family has run the Manchester-based company for three generations, said it brought in a vaccination van to serve employees and gave workers paid time off to get the shots. Only about half have done so.

“We’ve had employees come forward and say if we mandate the vaccine, or this comes to be, they will not get the vaccine and they will not get tested. How can I run a business when I have no talent?” Garfield asked at a news conference with Gov. Chris Sununu, a Republican.

She also said it’s difficult to find a place to get the virus test. When they are available, they can cost $200.

“That’s the difference between eating and starving,” Garfield said. “So what are these employees going to do? They’re going to go to another employer with less than 100 employees.”

The administration announced plans for the workplace rule in September and unveiled the plans Nov. 4. Many Republican governors and state attorneys general signaled ahead of time that they would challenge it immediately, as they did with multiple federal lawsuits filed Friday.

The states filed in the most conservative appeals courts in the country, where appointees of former President Donald Trump bolstered Republican-appointed majorities. It was not entirely clear whether the emergency stay issued Saturday by the 5th Circuit applied nationwide or just to the states that filed in that case — Louisiana, Mississippi, South Carolina, Texas and Utah.

The 5th Circuit order read, “the Mandate is hereby stayed pending further action by this court” but did not specifically state whether it applied only to the five states. Louisiana Attorney General Jeff Landry said it applied nationally, but states that filed in different courts asked Monday for clarification.

“Though the Fifth Circuit’s order may be construed to have nationwide effect, it does not make an explicit statement on this point,” according to a state filing in the St. Louis-based 8th U.S. Circuit Court of Appeals. “To avoid any confusion and to secure full protection of their rights, Petitioners respectfully request that this Court enter a similar order here.”

Alabama, Florida and Georgia also asked for a stay Monday in the Atlanta-based 11th U.S. Circuit Court of Appeals, noting the one granted in the New Orleans-based court is temporary. The group of states, businesses and organizations challenging the rule in the St. Louis-based court called for a quick review of their challenge to the workplace rule.

“Thousands of employers and millions of working families will feel its impact immediately. The Court should act swiftly to forestall these illegal and unconstitutional injuries,” the groups said in court papers.