WASHINGTON — The Justice Department on Tuesday asked a federal court for an emergency ruling to lift the court-imposed stay that blocked the Biden administration from proceeding with its Covid mask, testing and vaccination rules for large employers.
The rules, published by the Occupational Safety and Health Administration on Nov. 5, were stayed by the 5th U.S. Circuit Court of Appeals the next day. Part of the court’s reasoning was that OSHA is limited by law to addressing workplace hazards, while Covid exists everywhere.
That’s an error, the administration said in its emergency filing, asserting, “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 stay was also wrongly imposed, the administration said, because the companies and states seeking the hold can’t show that “their claimed injuries outweigh the interest in protecting employees from a dangerous virus while this litigation proceeds.”
The claims of injury “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,” it said.
The OSHA rule would require businesses with 100 or more employees to ensure that the workforce is fully vaccinated or require workers who aren't vaccinated to wear a mask and show a negative Covid test result at least once a week.
The mask requirement for unvaccinated employees was not scheduled to take effect until Dec. 5, and the vaccination requirement would not come into play until Jan. 4.
Nearly 30 lawsuits filed nationwide over the OSHA rules have now been brought together in a single case in the 6th U.S. Circuit Court of Appeals, based in Cincinnati. Under special rules governing these cases, the first stop for the challengers is a federal appeals court.
Normally, a three-judge panel would hear the case first, and the losing side could go on to the full federal appeals court. But there’s some gamesmanship going on: While the full 6th Circuit is notably conservative, it might be possible for the case to start with a panel that is more balanced; for that reason, several companies and groups opposed to the rule, joined by 27 Republican-led states, are asking for the issue to go directly to the full appeals court, bypassing any panel.
"The answer will affect the personal health decisions of tens of millions of Americans, coast to coast," the states said in their court filing. "It will determine whether private companies — many of which are still struggling to survive the economic carnage inflicted by COVID-19 — must invest resources helping the federal government run a mass-vaccination program."