The Biden administration’s push to make COVID-19 vaccination or regular testing a requirement for employment across the country has hit a legal stumbling block in New Orleans, where a federal appeals court has suspended the requirements for certain private businesses.
On November 12, in response to lawsuits filed by Republican-aligned businesses and legal groups, a three-judge panel of the US Court of Appeals for the 5th Circuit issued the suspension after temporarily blocking the mandate the week before.
The judges said that the mandate “grossly exceeds” the statutory authority of the Occupational Safety and Health Administration (OSHA), which is tasked with implementing and enforcing the rule. They argued that the rule imposed a financial burden on businesses and potentially violated the commerce clause of the Constitution.
“The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” they wrote.
The mandate, rolled out by the Biden administration in early November, would require private employers with more than 100 workers to obtain proof of vaccination from their staff, or test them weekly. Remote workers or those who do not work in the immediate vicinity of others would be eligible for exemption.
The administration argues that the measures are within the US Labor Department’s powers to ensure workplaces are free of “grave dangers” in times of emergency. The mandate, which emerged in September as part of a sweeping plan to head off the aggressive Delta variant of COVID-19, set a January 4 deadline for about 84 million private sector workers to show proof of vaccination or submit to regular testing.
Washington state officials have embraced mandates at the government level, requiring about 62,000 state employees, as well as 13,500 in King County and 12,000 in the City of Seattle, to prove they are fully vaccinated against the virus by October 18, or else lose their jobs.
The final decision on whether OSHA has the authority to enforce the federal mandate on private businesses will lie with the federal appeals court that is selected in a random lottery expected to take place this week. The New Orleans-based 5th Circuit is one of the appeals courts in the lottery.
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