Challengers allege the federal requirement infringes on states' rights.
An appeals court ruled the federal government can enforce President Joe Biden's employee vaccine mandate, but challengers are looking to send the case to the Supreme Court.
The decision passed by a 2-1 vote at the Court of Appeals for the Sixth Circuit, which typically hears appeals from Kentucky, Michigan, Ohio, and Tennessee. The move comes more than a month after the Court of Appeals for the Fifth Circuit blocked the Occupational Safety and Health Administration (OSHA) from moving forward with the vaccine mandate. A number of lawsuits against the mandate were filed in other districts as well, so the Biden administration requested that all complaints be pulled together and heard in a single court selected at random. The Sixth Circuit was selected in the lottery.
“The record establishes that Covid-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs,” wrote Judge Jane B. Stranch. “To protect workers, OSHA can and must be able to respond to dangers as they evolve.”
The mandate, which officially rolled out in early November, requires that by January 4, employers with 100 or more employees must ensure workers are fully vaccinated or that they undergo weekly COVID testing. The requirement covers about 80 million American workers. Those who do not follow the regulation could face fines of $14,000 for each violation.
OSHA wrote on its website that it's "gratified" by the Sixth Circuit's decision and that it will provide more time for employers to come into compliance, choosing not to issue citations for noncompliance before January 10 and not to issue citations for noncompliance with the standard’s testing requirements before February 9. Both of those dates are contingent on employers "exercising reasonable, good faith efforts."
“The OSHA vaccination or testing rule will ensure businesses enact measures that will protect their employees,” White House spokesperson Kevin Munoz said in a statement. “Especially as the US faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”
After the Sixth Circuit's decision, business groups, religious nonprofits, and nearly 30 states have asked the Supreme Court to block the vaccine mandate. The Biden administration was asked to respond to the challenges by December 30.
The [vaccine mandate] unlawfully regulates public health under the guise of workplace safety by carving out a federal police power traditionally reserved to the States," the complaint to the Supreme Court states. " ... Historically the police powers, including the power to regulate public health, safety and welfare, are an archetypal part of those powers that the Framers reserved to the States."
The battle over vaccine requirements comes as the Omicron variant begins to spread across the U.S. On December 19, the seven-day moving average for COVID cases was more than 132,000, compared to roughly 71,000 at the end of October. California reinforced its statewide mask rule, and New York now mandates that businesses require masks for indoor public spaces or vaccination. As of Monday, 61.5 percent of the U.S. is fully vaccinated and nearly 30 percent have received a booster shot.