December 17, 2021 8:45 PM, EST

Appeals Court OKs Private Employer Vaccine Mandate

Judge reading off a paperAndrey Popov/Getty Images

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A federal appeals court panel on Dec. 17 allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals reverses a decision by a federal judge in a separate court that had paused the mandate nationwide. But now the case could be headed to the U.S. Supreme Court.

American Trucking Associations and three state trucking associations were among many groups, associations and businesses who had filed suit against the requirement, arguing the U.S. Occupational Safety and Health Administration was not authorized to make the emergency rule. ATA also maintained that many truck drivers would be exempt from the rule because of exceptions that were allowed for people who work outdoors.

“Fundamentally, the [emergency temporary standard] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” the court said.

The rule from OSHA was to take effect Jan. 4, but on Dec. 18 the agency said on its website, "OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan.10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

The White House said in a statement that it will protect workers: "Especially as the U.S. faces the highly transmissible omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

The vaccine requirement would apply to companies with 100 or more employees and would cover about 84 million workers. Employees who are not fully vaccinated would have to wear masks and be subject to weekly tests for the coronavirus.

The case was consolidated before the Cincinnati-based 6th Circuit, which is dominated by Republican-appointed judges. Of the two ruling in favor of the OSHA mandate, one was appointed by a Democratic president and the other by a Republican. The dissenting judge was appointed by former President Donald Trump.

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons wrote in her majority opinion.

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the Supreme Court to block the order. The Job Creators Network, a conservative advocacy group, said it had already asked the Supreme Court to block the mandate.

“The 6th Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” she said.

 A survey of ATA member fleets found that about 37% of drivers polled indicated they would quit their jobs or move to another company if a mandate were adopted at the companies where they worked.

About 85% of adults nationwide already have received at least one dose of a COVID-19 vaccine. But Biden contends his workforce vaccine mandates are an important step to drive up vaccination rates and contain the virus outbreak, which has killed about 800,000 people in the U.S.

The administration has estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months. On Dec. 17, the U.S. Department of Labor, which includes OSHA, said the 6th circuit's ruling will allow the agency to implement “common-sense, science-based measures to keep workers safe and healthy during a deadly pandemic.”

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