Biden administration asks courtroom to elevate pause

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United States President Joe Biden speaks at the Eisenhower Executive Office Building in Washington, DC, USA on Thursday, October 14, 2021.

Al Drago | Bloomberg | Getty Images

The Biden government Tuesday asked a federal appeals court to immediately overturn an order to suspend Covid vaccine and testing requirements for private companies, warning that delaying implementation would cost lives and lead to more hospitalizations.

The Justice Department told the US 6th District Court of Appeals that “the threat to workers continues and is overwhelming” as offices reopen and the highly portable Delta variant spreads.

“Simply put, delaying the standard would likely cost many human lives per day, in addition to large numbers of hospitalizations, other serious health effects, and enormous costs of exercise.

The Biden government asked the court to at least keep the masking and testing requirements for unvaccinated workers in place as a bridging measure in the course of the litigation.

“While vaccination is the most effective way to reduce the serious risk of COVID-19 in the workplace, masking and testing is a reasonably effective alternative for unvaccinated employees,” the administration told the court.

The U.S. reports an average of around 95,000 new infections daily, a 14% increase from the previous week, according to data from Johns Hopkins University. According to Hopkins, an average of more than 1,100 people die from the virus every day in the United States.

About 50,000 Americans are hospitalized with Covid-19, up 6% over the past week, according to a seven-day average of the Department of Health’s data through Monday.

The Biden administration was forced to cease implementing and enforcing its vaccination and testing policies in response to an order from the U.S. Fifth District Court of Appeals, one of the most conservative appeals courts in the country. Judge Kurt D. Engelhardt said in a report for a three-person committee that the policy was “fatally flawed” and “surprisingly too broad”, which raised “serious constitutional concerns”.

More than two dozen lawsuits have been filed against Biden’s policies. Republican attorneys general, private companies, and industry groups like the National Retail Federation, American Trucking Associations, and the National Federation of Independent Business want the requirements lifted. Unions have taken legal action in courts to extend requirements to smaller companies and protect more workers.

These lawsuits were transferred to the Sixth Circuit last week after the Biden government asked a multiple district arbitration tribunal to randomly consolidate the cases into a single court. The Biden administration is now seeking the Ohio-based 6th District Court of Appeal to end the break ordered by the Louisiana 5th District.

The Justice Department in its motion on Tuesday dismissed the Fifth Circuit’s constitutional concerns as “baseless,” arguing that companies’ obligation to protect employees from workplace hazards would not exceed the powers of the federal government under the Constitution’s trade clause.

The Biden government also informed the Sixth District that the labor protection agency, which developed the rules under the emergency powers, had acted well within its powers under the statute established by Congress.

OSHA, which oversees occupational safety for the Department of Labor, can shorten the normal rulemaking process if the Minister of Labor determines that a new occupational safety standard is needed to protect workers from a serious hazard. The White House has repeatedly said that the virus is clearly a serious threat to workers, highlighting the appalling death toll and high transmission rates across the country.

The Biden policy required companies with 100 or more employees to ensure that their employees are vaccinated or undergo weekly Covid tests by January 4. Unvaccinated workers were required to wear face masks indoors at work from December 5.

Regardless of the Sixth Circuit’s decision, legal experts assume that the case will ultimately end up in the Supreme Court.