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Blocked for now, Biden administration's vaccine-or-test mandate for workers faces uncertain future

November 12, 2021
The White House on Nov. 8 said businesses should move forward with President Joe Biden’s vaccine and testing requirements for private businesses, despite a federal appeals court ordering a temporary halt to the rules.
The U.S. Court of Appeals for the 5th Circuit, considered one of the most conservative appellate courts in the country, halted the requirements Nov. 6 pending review, writing that "the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate."
The Republican attorneys general in five states, as well as several companies, requested the pause. They argued that the requirements exceed the authority of the Occupational Safety and Health Administration, which will enforce the mandates, and amount to an unconstitutional delegation of power to the executive branch by Congress.
In its Nov. 8 response, the Biden administration asked the court to lift the pause, dismissing the states’ and companies’ claims of harm as "premature" given that the deadlines for vaccination and testing are not until January. The administration claimed that pausing the requirements "would likely cost dozens or even hundreds of lives per day" as the virus spreads. The Labor and Justice Departments also argued that OSHA acted within its authority as established by Congress.
The court-ordered pause came a day after the requirements went into effect, starting the countdown for businesses with 100 or more employees to ensure their staff have received the shots required for full vaccination by Jan. 4. After that date, unvaccinated workers must submit a negative Covid-19 test weekly to enter the workplace. All unvaccinated workers must start wearing face masks indoors at their workplaces starting Dec. 5.
The ETS requires:
• establishing, implementing and enforcing a written Mandatory Vaccination Policy with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace (OSHA has provided sample Mandatory Vaccination Policy and a sample Vaccination or Testing and Face Covering Policy; and
• determining the vaccination status of each covered employee;
• keeping vaccination records for all fully vaccinated covered employees;
• providing paid time off for covered employees to get vaccinated and/or to recover from vaccination side effects;
• requiring COVID-19 test results from unvaccinated covered employees every seven days. (There are exceptions to this requirement based on when covered employees report to a workplace. Dealer employers need not pay for required COVID-19 testing.);
• taking specific actions when an employee tests positive for COVID-19;
• requiring unvaccinated covered employees to wear face masks generally while indoors or in vehicles with other persons; and
• allowing most covered employees to voluntarily wear face masks.
OSHA has issued FAQs on the rule. Among other things, the FAQs clarify that:
• For purposes of the 100-employee threshold, a single corporate entity with multiple locations must count all employees at those locations. For example, a dealership group with five stores with a total of at least 100 employees must comply with the ETS even if some of those dealerships have fewer than 100 employees. With regard to the issue of whether affiliated companies under common control (for example, a chain of dealerships owned by a single parent corporation) must be treated as one employer, the ETS notice states: [T]wo or more related entities may be regarded as a single employer … if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
• Part-time, off-site and remote employees count toward the 100-employee threshold.
Attorneys general in at least 26 states have challenged Biden’s vaccine and testing requirements in five different U.S. appeals courts since Nov. 5. The Republican National Committee said it has also challenged the requirements in the D.C. Court of Appeals.
It’s unclear which court will ultimately decide the case. When multiple petitions are filed in at least two courts, the cases are consolidated in one of those courts through a lottery system. The Justice Department said in a Nov. 8 filing that the lottery is expected take place on or around Nov. 16. The Biden administration said the courts should not rule until the jurisdiction for the consolidated case has been selected.
David Vladeck, a professor of law at Georgetown University, said there’s a "high probability" that the case will end up before the Supreme Court.
OSHA, which polices workplace safety for the Labor Department, developed the vaccine and testing requirements under emergency authority established by Congress. That authority allows the agency to shortcut the process to issue workplace safety standards, which normally takes years. 
The Labor Department’s top lawyer, Seema Nanda, said Nov. 5 that the Biden administration is "fully prepared to defend this standard in court." 
Nanda said the law "explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them."
Nanda also said the vaccine and testing requirements supersede "any state or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing." Texas Gov. Greg Abbott issued an executive order last month banning vaccine mandates in the Lone Star State.
OSHA emergency workplace safety standards have a mixed track record in court. Prior to the vaccine requirements, the agency had issued 10 such standards in its 50-year history. Courts halted or overturned four of those standards, and a fifth was partially vacated.
More than 750,000 people have died in the U.S. from Covid since the pandemic began, according to data from the Centers for Disease Control and Prevention. More than 1,100 people a day die from Covid, and more than 71,000 people a day are newly infected, according to data from Johns Hopkins University.
"If that’s not a grave danger, I don’t know what else is," Nanda said.