President Biden’s Vaccine or Testing Mandate Gets Green Light

New York—President Biden’s vaccine and testing mandate for private businesses was reinstated by a federal appeals court last week following a November injunction.

A ruling by the 6th U.S. Court of Appeals in Cincinnati lifted a November injunction that blocked a rule by the Occupational Safety and Health Administration (OSHA) requiring companies with 100 or more employees to either have their workers fully vaccinated against COVID-19 or require weekly testing.

The initial announcement about the Emergency Temporary Standard (ETS) implemented by OSHA was met with some pushback, including from the National Retail Federation, which filed a lawsuit in November to challenge the rule.

The trade organization once again expressed its concerns about the ruling in a statement issued Friday by David French, its senior vice president of government relations.

“NRF has long maintained that OSHA, in promulgating its Vaccine Mandate Emergency Temporary Standard, exceeded the authority granted to it by Congress in 1970 and crafted a rule that is infeasible for employers to implement during the critical holiday season,” said French.

The organization asked the Biden administration to delay the implementation guideline and said it will “consider additional legal options.”

Other critics of the bill had echoed the NRF’s sentiment, but the federal government contended it had the authority to issue the mandate since Congress has authorized OSHA to issue an ETS when employees are exposed to a “grave danger,” like COVID-19.

The 6th Circuit agreed in its decision Friday, pointing out OSHA’s historical precedent for using its discretion to protect workers, and said it had demonstrated the “pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

The mandate caused some confusion when it was first announced in the fall without key details, leaving business owners with many unanswered questions. The confusion may have been exacerbated by the injunction and, now, reinstatement of the rule.

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS,” a Department of Labor spokesperson said in a statement.

The rule required affected businesses to have workers fully vaccinated or be submitting a weekly COVID test by Jan. 4.

Unvaccinated employees were required to wear masks indoors as of Dec. 5.

OSHA will not issue citations for noncompliance with any of the rule’s requirements before Jan.10.

It will not issue citations for noncompliance with the rule’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

OSHA said it will work with those under the rule to provide compliance assistance.

Though the rule has passed one hurdle, there may be a Supreme Court battle up ahead.

Texas Attorney General Ken Paxton tweeted, following the Friday ruling, that he would ask the Supreme Court to overturn the rule.

The Justice Department expressed concern that blocking the OSHA rule will be detrimental to the public as COVID-19 cases rise this winter and the Omicron variant rages.

“COVID-19 is spreading in workplaces, and workers are being hospitalized and dying,” the Justice Department said in a court filing Friday.

“As COVID-19 case numbers continue to rise and a new variant has emerged, the threat to workers is ongoing and overwhelming.”

For more information about COVID-19 safety or the vaccine, visit the Centers for Disease Control and Prevention’s website.