CINCINNATI (CN) — The Biden administration urged an appeals court on Tuesday to lift a stay of a Covid-19 vaccine mandate for big companies on the basis that the Occupational Safety and Health Administration has the authority to protect citizens from "grave dangers in the workplace."
The petition, filed with the Cincinnati-based Sixth Circuit, asks the federal appeals court to remove a stay granted by the Fifth Circuit just over two weeks ago, arguing the federal government has statutory authority to implement the mandate under the 1970 Occupational Safety and Health Act that created OSHA.
A flurry of lawsuits challenging the mandate – which applies to businesses with 100 or more workers – were filed across the country in recent weeks. After the decision by the Fifth Circuit, they were consolidated and sent to the Sixth Circuit for arguments by way of a lottery system.
President Joe Biden previously announced the mandate would not go into effect until Jan. 4, 2022.
In its petition to the Sixth Circuit, the Department of Labor called the challengers' alleged injuries "speculative," and claimed they are nothing more than "minor compliance costs" that do not grant them standing to fight the mandate.
The government cited evidence regarding reduced transmission of the virus among vaccinated individuals, and emphasized that employees are not required to be vaccinated, but would be subject to testing protocols if they choose to remain unvaccinated.
"OSHA thus crafted a regulatory approach that protects unvaccinated workers while leaving leeway for employers to determine the most appropriate option for their workplaces," the petition states. "Taken together, these risk-mitigation methods will protect unvaccinated workers against the most serious health consequences of a Covid-19 infection and 'reduce the overall prevalence' of the Covid-19 virus 'at workplaces.'"
The federal government also criticized the Fifth Circuit's interpretation of the Occupational Safety and Health Act, specifically its determination that Covid-19 did not represent a "new hazard" under the legislation.
"A hazard can be both 'recognized' and 'new,'" the petition states. "Indeed, to have evidence about a grave danger, a hazard must be recognized in some sense. And, 'by any measure,' Covid-19 'is a new hazard' -- there were no cases in the United States until just last year, and since June 2021, 'the risk posed by Covid-19 has changed meaningfully.'"
The government accused the New Orleans-based appeals court of raising "meritless" constitutional concerns regarding the mandate, arguing the Commerce Clause allows it to require employees to take action and ensure safe working conditions.
It cited the 1964 U.S. Supreme Court case Katzenbach v. McClung, in which an Alabama restaurant owner was prevented from discriminating against Black customers, and also pointed out that federal laws require employees to "fill out all sorts of paperwork [and] establish job qualifications such as education, licensing, or health requirements."
The rapidly evolving nature of the Covid-19 virus and the emergence of the delta variant required the federal government to act, according to the petition, which accused the Fifth Circuit of ignoring its "comprehensive explanations ... [and] evidence-based determinations."
"Prior, nonregulatory options have proven 'inadequate,' and due to 'rising 'Covid fatigue,'' voluntary precautions are becoming even less common," the petition said. "At the same time, vaccines are now widely available; large-scale studies have further confirmed the 'power of vaccines to safely protect individuals,' including from the delta variant ... [and] this response is needed now to address an ongoing grave danger in the workplace."
While the federal government seeks a total removal of the stay, it admitted in its conclusion that if the Sixth Circuit disagrees with its position, it should at least modify the stay to allow the mandate's masking and testing requirements to remain in place until the litigation is resolved.
It argued that any delay in the enforcement of the mandate would "likely cost many lives per day," and cited OSHA estimates that over a six-month period, the mandate would save over 6,500 lives and prevent over 250,000 hospitalizations.
"The Fifth Circuit did not dispute OSHA's estimates of the standard's benefits," the government said. "Rather, the court disregarded them altogether."
Arguments for the consolidated cases have not yet been scheduled with the Sixth Circuit, although a petition has been filed to allow for an initial hearing before the entire court.
Tuesday's petition was filed by acting Assistant Attorney General Brian M. Boynton.
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