Government asks Sixth Circuit to lift stay on vaccine-or-test mandate

The U.S. government has asked the U.S. Court of Appeals for the Sixth Circuit to lift a stay on the Occupational Safety and Health Administration’s vaccine-or-test mandate for private-sector employers.

In a motion filed Tuesday, the government said the Fifth Circuit’s stay on the agency rule requiring workers to either get vaccinated or tested periodically should be immediately lifted in order to prevent COVID-19 deaths and hospitalizations. Attorneys with the agency, U.S. Department of Justice and Department of Labor contended that one of the Fifth Circuit’s primary reasoning for granting the stay—that OSHA doesn’t have statutory authority to create the emergency rule—was flawed.

“That court’s principal rationale was that OSHA allegedly lacked statutory authority to address the grave danger of COVID-19 in the workplace on the ground that COVID-19 is caused by a virus and also exists outside the workplace. That rationale has no basis in the statutory text. Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace,” the filings reads.

If the Sixth Circuit leaves the stay in place, the government asked that it be modified so the rule’s masking-and-testing requirement remain in effect while the court battle continues.

“In light of the stay opinion’s focus on mandating vaccination, the extraordinary and ongoing threat to employee safety in the workplace, and the proven ability of masking and testing to mitigate that threat, the court should, at the very least, lift the portion of the stay that enjoins OSHA from requiring employers to ensure that unvaccinated workers wear a face covering in the workplace and get tested regularly for COVID-19,” the filing reads.

Earlier this month, Fifth Circuit Judges Edith Jones, Stuart Kyle Duncan and Kurt Engelhardt unanimously granted an emergency temporary stay of the rule in BST Holdings v. OSHA, writing that the petitions gave “cause to believe there are grave statutory and constitutional issues with the mandate.”

The OSHA mandate requires private companies with 100 or more employees to have their employees get vaccinated by Jan. 4, or implement weekly testing and mask requirements. Businesses that don’t comply could face fines of nearly $14,000 per violation. OSHA suspended the rule last week, but the Sixth Circuit, which was selected in a random, multi-circuit lottery to hear the dozens of challenges to the rule, now has the ability to lift the stay.

In Tuesday’s filing, the government also argued the petitioners haven’t shown their claimed injuries outweigh the government’s interest in protecting workers from the coronavirus.

“Petitioners’ asserted injuries are speculative and depend heavily on minor compliance costs or predictions about how employees may respond that are at odds with empirical evidence addressed by the agency. These claimed injuries do not justify delaying a standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations,” the motion reads.

The panel of judges who will hear the case has not yet been announced. Several businesses and groups challenging the rule have asked the Sixth Circuit to hear the lawsuit initially en banc, though legal experts say such hearings are rare. The full court’s make-up leans conservative, with 11 judges appointed by Republican presidents and five by Democratic presidents.

The rule is an emergency temporary standard, meaning OSHA bypassed the typical notice-and-comment rulemaking procedures. Doing so is permitted under the Occupational Safety and Health Act of 1970, but for the rule to be valid, the agency needs to prove it protects workers from a “grave danger” in the workplace.

Randi May, labor and employment attorney at law firm Hoguet Newman Regal & Kenney in New York, noted that the government will face high hurdles in defending the standard.

“Sure, [COVID-19] is a grave danger, but is it a grave danger that is unique to the workplace, or is it just a grave danger?” May said. “OSHA usually deals with things like there’s asbestos leaking from the ceilings or machinery is unsafe… If there was a certain chemical that was being emitted during the manufacturing of something that’s critical for our supply chain … OSHA would have to get involved and do something. No other agency really has the authority to do that. But this is so much different than that.”