A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead.
The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati reversed a decision by a federal judge in a separate court that had paused the mandate nationwide.
The rule from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement may be put in place. Republican state attorneys general and business groups said they would appeal Friday’s decision to the U.S. Supreme Court.
Republican-led states joined with conservative groups, business associations and some individual businesses to push back against the requirement as soon as OSHA published the rules in early November. They argued the agency was not authorized to make the emergency rule, in part because the coronavirus is a general health risk and not one just faced by employees at work.
The panel’s majority disagreed.
“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.
“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.
Gibbons said the rule “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
She was joined by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.
The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.
The dissent came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.
Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”
Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. The Job Creators Network, a conservative advocacy group, said Friday it had already asked the Supreme Court to block the mandate.
“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.
South Carolina Attorney General Alan Wilson, who also is chairman of the Republican Attorneys General Association, said in a Twitter message Friday that he was confident the mandate could be stopped.
The vaccine requirement would apply to companies with 100 or more employees and would cover about 84 million workers in the U.S. Employees who are not fully vaccinated would have to wear masks and be subject to weekly COVID-19 tests. There would be exceptions, including for those who work outdoors or only at home.
The rule is separate from other vaccine mandates announced by the Biden administration that apply to federal government contractors and workers in health care facilities that receive funding from Medicaid or Medicare. All the rules are under assault from conservatives and have been paused in at least some parts of the country.
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Mulvihill reported from Cherry Hill, New Jersey, and DeMillo from Little Rock, Arkansas.
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