Claims COVID remains an “ongoing and overwhelming” threat; Says OSHA could expand mandate to smaller businesses under 100 employees.
President Joe Biden wants the federal COVID vaccine mandate stay issued by the 5th Circuit Court of Appeals lifted immediately. This according to the latest filing from the Biden Administration.
The 5th Circuit’s ruling was made as a result of the filing made by Mississippi, 10 other states, and private businesses seeking relief from the government overreach. That Court reaffirmed its order a week after its initial stay, saying then that Biden’s mandate was “fatally flawed.”
Since the 5th Circuit issued that stay, a judicial panel merged lawsuits from across the nation challenging President Biden’s federal vaccine mandates. They will now be heard in the 6th Circuit Court of Appeals.
The Biden Administration is seeking to reinstate the mandate claiming the threat of the virus on workers is “ongoing and overwhelming.”
“Delaying this standard would endanger many thousands of people and would likely cost many lives per day,” the Biden Administration argues. “With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”
A majority of Biden’s filing before the 6th Circuit challenges the arguments presented in the 5th Circuit and the ruling by that Court.
Fifth Circuit Judge Kurt Engelhardt questioned the “emergency” nature of the mandate given that the pandemic is nearly two years old. He also pointed out that OSHA itself spent nearly two months responding to the President’s order. OSHA has since suspended the implementation of its vaccine requirements as ordered by the Biden Administration.
Biden’s attorneys argue that the petitioners challenging the mandates have not shown that they are likely to succeed on the merits, that they face any irreparable harm, or that the balance of equities and public interest tilt in their favor.
Judge Engelhardt went on to question whether COVID now poses the kind of “grave danger” required to impose such wide reaching mandates, calling it overbroad. He also noted that the mandate was overinclusive and underinclusive as it relates to the arbitrary way in which businesses are impacted based on a certain number of employees.
The Biden Administration answered that in their filing, essentially saying the 100 employee cutoff was an initial step and that OSHA would be considering action to impart further mandates on smaller businesses.
“Due to the ‘unique’ and exigent occupational safety and health dangers presented by COVID-19, OSHA is ‘proceeding in a stepwise fashion’ by applying the Standard to ‘companies that OSHA is confident will have sufficient administrative systems in place to comply quickly,'” Biden’s team states, adding, “OSHA is concurrently obtaining ‘additional information to determine whether to adjust the scope of the ETS to address smaller employers.’ OSHA’s decision, in other words, does not suggest doubt about the grave danger posed by COVID-19 or the necessity of the Standard—it demonstrates OSHA’s need to act urgently. The government ‘need not address all aspects of a problem in one fell swoop’ even under strict scrutiny.”
For now, the stay issued by the 5th Circuit remains in place.
You can read the filing by the Biden Administration below.