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Biden administration suspends enforcement of business vaccine mandate

U.S. President Joe Biden delivers remarks on the authorization of the COVID-19 vaccine for children ages 5 to 11, in the South Court Auditorium at the White House in Washington, November 3, 2021.

Evelyn Hockstein | Reuters

The Biden administration has suspended enforcement of its vaccination and testing requirements for private businesses after a federal appeals court halted the rules pending review.

The Occupational Safety and Health Administration, in a statement on its website, said the agency “has suspended activities related to the implementation and enforcement” of the requirements “pending further developments in the litigation.”

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The U.S. Court of Appeals for the Fifth Circuit, considered one of the most conservative in the country, ordered OSHA last week to “take no steps to implement or enforce the Mandate until further court order.”

Judge Kurt D. Engelhardt, in an opinion for the three-judge panel, called the Biden policy “fatally flawed” and “staggeringly overbroad,” arguing that it likely exceeds the authority of the federal government and raises “serious constitutional concerns.”

The White House previously told businesses to proceed with the implementation of the requirements.

Republican attorneys general, private businesses and national industry groups such as the National Retail Federation, American Trucking Associations, and National Federation of Independent Business have sued to overturn the requirements. Labor unions are asking the courts to expand the requirements to cover smaller businesses and protect more workers.

Those cases were transferred to the Sixth Circuit Court of Appeals in Ohio this week after the Biden administration asked a multidistrict litigation panel to consolidate the 34 lawsuits in a single court through random selection.

The Sixth Circuit, which has a Republican-appointed majority, ordered the administration to file a single response by Nov. 30 to several requests for the full court to hear the case, rather than a three-judge panel. A hearing by all 16 judges would potentially provide a more favorable venue for those seeking to overturn the requirements due to the court’s conservative majority.

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The Biden administration, in its response to the Fifth Circuit’s initial Nov. 6 decision to press pause, warned that halting implementation of vaccine requirements “would likely cost dozens or even hundreds of lives per day” as the virus spreads. The Labor and Justice Departments maintain that OSHA acted well within its authority as established by Congress.

Under the Biden policy, businesses with 100 or more employees faced a Jan. 4 deadline to ensure their workers are vaccinated or undergo regular testing. Unvaccinated employees were required to start wearing masks indoors at the workplace on Dec. 5.

OSHA said it “remains confident in its authority to protect workers in emergencies.” The agency, which polices workplace safety for the Labor Department, issued the requirements under its emergency authority. OSHA can shortcut the normal rulemaking process if the Labor secretary determines that a new workplace safety standard is necessary to protect workers from grave danger.

Whatever the outcome in federal appeals court, the case will likely be decided by the Supreme Court, according to Carl Tobias, a professor of law at the University of Richmond. “Whoever loses in the Sixth Circuit is going to the Supreme Court,” Tobias told CNBC on Thursday.

The U.S. Chamber of Commerce, in a statement to CNBC this week, advised businesses to proceed with implementation until the requirements are “definitively shut down.”

“Ultimately the courts are going to decide, but employers still need to take this as a live ETS until it is definitively shut down,” Marc Freedman, the Chamber’s vice president of employment policy, said of the emergency temporary standard. “They should not bank on the preliminary actions of the 5th Circuit,” he told CNBC in a statement.

Correction: The National Federation of Independent Business filed a lawsuit seeking to overturn the Biden administration’s vaccination and testing requirements. A previous version of this story misstated the organization’s name. The Sixth Circuit has asked the Biden administration to file a response to petitions for the full court to consider the case. The story previously misstated the petitions.

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