US President Joe Bidenʼs vaccine and testing requirements for private businesses are “fatally flawed” and “staggeringly over-broad”, ruled a federal appeals court, probably “exceeding the federal government’s authority” and raising “serious constitutional concerns”.
CNBC reports that the US Court of Appeals for the Fifth Circuit has reaffirmed its decision to hold back on implementing the requirements, in another sign that they may not survive judicial scrutiny.
Biden had said companies with 100 or more employees have until 4 January to ensure all staff have been fully vaccinated. After that date, unvaccinated employees must submit negative COVID tests weekly to enter the workplace. Unvaccinated employees must start wearing masks indoors at work starting from 5 December.
The appellate court, one of the most conservative in the country, originally halted the requirements on 6 November pending review, in response to challenges by the Republican attorneys general of Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies.
While the court has not yet ruled on the constitutionality of the requirements, the three-judge panel made it clear last Friday (12 November) that the lawsuits seeking to overturn the mandates “are likely to succeed on the merits”. They criticised the requirements as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers)”.
The Occupational Safety and Health Administration (OSHA) developed the requirements under emergency authority established by Congress, allowing shortcuts to a process that normally take years.
OSHA can use its emergency authority if necessary to protect workers from a “grave danger” posed by a new hazard. But on Friday, the judges questioned whether COVID poses a grave danger to the workers covered by the requirements.
On Monday (15 November), the Biden administration had asked the court to lift the pause, warning that delaying implementation could “cost dozens or even hundreds of lives per day” as the virus spreads. White House officials have repeatedly said that COVID poses a grave danger to workers, pointing to the staggering death toll from the virus and the high levels of transmission countrywide.
More than 750,000 people have died in the USA from the virus since the pandemic began and more than 46m have been infected, according to data from the Centers for Disease Control and Prevention. More than 1,000 Americans die daily from the virus and nearly 80,000 are infected daily on average, according to data from Johns Hopkins University.
The White House has told businesses to press ahead with implementing the requirements even as the legal drama plays out in the courts.
The Biden administration faces a flurry of lawsuits seeking to overturn the mandates. Republican attorneys general in at least 26 states have challenged the requirements in five federal appellate courts.
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