Biden Team Defends Worker Vaccine Rule, Wants Cases Combined

Its private employer vaccine mandate on hold, the Biden administration wants the multiple challenges to its workplace rule consolidated in a single federal court and has asked for a decision by early next week.

The U.S. Department of Justice said in court filings Monday that one of the federal circuit courts should be chosen at random on Nov. 16 to hear the cases.

At least 27 states plus several businesses and associations filed a dozen legal challenges in at least six federal appeals courts after the Occupational Safety and Health Administration released its rules last week. All the states have a Republican governor or attorney general.

Over the weekend, judges on the New Orleans-based 5th Circuit U.S. Court of Appeals paused the rule from taking effect, saying it raises “grave statutory and constitutional issues.” White House spokeswoman Karine Jean-Pierre on Monday expressed confidence that the COVID-19 vaccine mandate can withstand any legal challenges.

“This is an authority that we believe the Department of Labor has,” Jean-Pierre told told reporters during a news briefing. “We are very confident about it.”

The mandate would apply to private businesses with more than 100 workers. Employees who do not receive the shots by Jan. 4 would be required to wear a mask and be tested weekly for the coronavirus. The OSHA rules create exemptions for workers citing religious objections and for those who do not interact in-person with coworkers or customers, as well as those who work only outdoors.

Republican state attorneys general and others sued on the grounds that the federal government does not have the right to make the regulation, partly because COVID-19 is not a workplace-specific danger.

Jean-Pierre said the mandate was about keeping people safe and that Congress had empowered the Labor Department to act with the Occupational Safety and Health Act of 1970. Vaccine mandates, including those for certain federal employees and the military, are a key component of the Biden administration's strategy for containing a pandemic that has killed 750,000 people in the U.S.

It has said that widespread vaccinations are the quickest way out of the pandemic.

“People should not wait” to be vaccinated, Jean-Pierre said.

The administration announced plans for the workplace rule in September and unveiled the plans Nov. 4. Many Republican governors and state attorneys general signaled ahead of time that they would challenge it immediately, as they did with multiple federal lawsuits filed Friday.

The states filed in the most conservative appeals courts in the country, where appointees of former President Donald Trump bolstered Republican-appointed majorities. It was not entirely clear whether the emergency stay issued Saturday by the 5th Circuit applied nationwide or just to the states that filed in that case — Louisiana, Mississippi, South Carolina, Texas and Utah.

The 5th Circuit order read, “the Mandate is hereby stayed pending further action by this court" but did not specifically state whether it applied only to the five states. Louisiana Attorney General Jeff Landry said it applied nationally, but states that filed in a different court asked Monday for clarification.

“Though the Fifth Circuit’s order may be construed to have nationwide effect, it does not make an explicit statement on this point," according to a state filing in the St. Louis-based 8th U.S. Circuit Court of Appeals. "To avoid any confusion and to secure full protection of their rights, Petitioners respectfully request that this Court enter a similar order here.”

The group of states, businesses and organizations challenging the rule in the 8th Circuit also called Monday for a quick review of their challenge to the workplace rule.

“Thousands of employers and millions of working families will feel its impact immediately. The Court should act swiftly to forestall these illegal and unconstitutional injuries,” the groups said in court papers.