WASHINGTON — The Biden administration on Monday argued that the federal government had all the power it needed to require large employers to mandate vaccination of their workers against the Covid-19 virus — or to require those who refuse the shots to wear masks and submit to weekly testing.
In a 28-page filing before the United States Court of Appeals for the Fifth Circuit, which temporarily blocked the mandate with a nationwide stay last week, the Justice Department argued that the rule was necessarily to protect workers from the pandemic and was well grounded in law.
Keeping the mandate from coming into effect “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs,” the Justice Department said in its filing. “That is a confluence of harms of the highest order.”
The Occupational Safety and Health Administration, part of the Labor Department, issued the standard last week. The rule would force companies with at least 100 employees to require unvaccinated employees to wear masks indoors starting Dec. 5. Employees who remain unvaccinated by Jan. 4 would have to undergo weekly testing at work.
A coalition of plaintiffs — including several employers, and Republican-controlled states — have challenged the mandate in court. Their lawsuit argued that the mandate is an unlawful overreach that exceeds the authority Congress has legitimately delegated to OSHA.
The agency, several of the plaintiffs argued in a 20-page filing on Nov. 7, is an occupational safety organization with limited jurisdiction to protect workers from dangerous workplace substances like asbestos — “not a public health agency with wide-ranging authority to address communicable diseases through regulation.”
They also argued that raising concerns about workplace safety was just a “pretext” for the Biden administration’s real agenda — pressuring more Americans to get vaccinated.
Last week, a three-judge panel on the Fifth Circuit temporarily blocked the new standard, saying in a terse unsigned opinion that the challengers had given “cause to believe there are grave statutory and constitutional issues with the mandate.”
The Fifth Circuit panel will now decide whether to lift its decision to block the mandate or make it permanent. But it is unlikely to have the final word.
Some other legal challengers to the mandate are in different appeals court circuits, and the many pending challenges are expected to be consolidated before a randomly assigned appeals court later this month.
