But in a separate challenge, some judges seemed more open to a vaccine mandate aimed at certain health care workers.
The court heard arguments for nearly four hours as the number of infections continues to rise, and 40 million adults in the US are still refusing to be vaccinated.
Three liberal judges in the court expressed clear approval for the rules of administration in both areas.
Two sets of rules were issued in November. The first will affect about 80 million individuals and require large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires some health care workers who work for facilities that participate in Medicare or Medicaid programs to receive vaccinations.
Critics of the requirements, including business groups and the Republican-led Coalition of States, say the Biden administration has exceeded its authority in issuing such a broad mandate, which could lead to severe staff shortages and billions of dollars in compliance costs. can be. On the other hand, the administration focuses on the impact of the virus that has already killed nearly 800,000 Americans, closed businesses and kept children out of classrooms.
Already judges have rejected a separate attempt by the president to downplay the virus’s impact. Last August, a 6-3 court blocked the government’s eviction moratorium, believing that the agency in that case, the US Centers for Disease Control and Prevention, had exceeded its authority.
On Friday, the first set of arguments centered on the rule put forward by the Occupational Safety and Health Administration — an agency that falls under the US Department of Labor and is charged with assuring a safe workplace. OSHA requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo routine testing and wear a face covering at work. There are exceptions for those with religious objections.
The agency said employees had the right to act under an emergency temporary standard to protect employees when exposed to “serious danger”.
The Biden administration defends the regulation and argues that the nation is facing a pandemic “that is sickening and killing thousands of workers across the country” and that the need to obtain a vaccine or to undergo routine testing has been decimated. Any delay in enforcement will result in “unnecessary illness, hospitalization and death.”
Solicitor General Elizabeth Preller told judges in court papers that if the court ruled in favor of the challengers it would leave OSA “powerless” to address the “serious workplace hazards posed by existing viruses and other infectious diseases as well as future” to be answered. Epidemic.”
At a minimum, she argued, if the court says employers cannot require employees to receive the vaccine, it should drop the optional requirement for masking and repeated testing.
But a lawyer for the National Federation of Independent Business, representing a coalition of trade groups, told the court that OSHA does not have the authority to establish a vaccine and testing regime that would cover two-thirds of all private sector workers. Lawyer, Scott A. Keller stressed that the OSHA requirement would impose substantial compliance costs on businesses that would face the cost of testing millions of employees who refuse vaccination.
Keller argues that the rule will trigger serious staff shortages when employees object to the requirements. “The resulting labor turmoil will devastate already fragile supply chains and labor markets during the peak holiday season,” they wrote in the court papers.
Keller told judges that if the court ruled in favor of the government in the dispute it would “significantly expand” the agency’s authority over industries covering a significant portion of the economy. “Congress did not give OSHA the power to enforce an emergency mandate and monitor 84 million employees for a known, all-encompassing threat that does not present a unique threat to the identified workplaces,” he said.
Keller is supported by a coalition of states represented by Ohio Solicitor General Benjamin M. Flowers, who told the judges that the mandate was the state’s sovereign to “commit and enforce antitrust policies” with no federal vaccination or testing requirement. invades the right.
A divided panel of judges at the 6th US Circuit Court of Appeals ruled in favor of the administration, noting that COVID-19 “continues to spread, alter, kill and block the safe return of American workers to their jobs”. “OSHA” should and should be able to respond to threats as they develop.
But a respected conservative judge from the same court disagreed during the first phase of the case. Judge Jeffrey Sutton acknowledged the “usefulness of vaccines,” saying, “It’s rare federal judges haven’t got the message.” However, he said that no matter the policy benefits of a well-considered regulation, “a court cannot enforce it if the agency’s reach exceeds the understanding of a statute.”
OSHA has said it will not issue citations to employers for non-compliance before January 10.
more than 10 million health care workers
The second rule relates to a vaccine policy introduced in November by the US Department of Health and Human Services’ Center for Medicare and Medicaid Services to require a COVID-19 vaccine for certain health care workers in hospitals, nursing homes and other facilities. . who participate in Medicare and Medicaid programs.
According to government estimates, the mandate controls more than 10.3 million health care workers in the United States. Covered employees were originally required to receive the first dose by December 6 and the mandate allows for certain religious and medical exemptions.
Fletcher said the requirement would save “hundreds or thousands of lives every month” and pointed out that patients participating in Medicare and Medicaid programs are of advanced age or suffer a disability and face a higher risk of developing serious complications if infected. We do. COVID-19.
“It is difficult to imagine a paradigm health and safety situation requiring staff from hospitals, nursing homes and other medical facilities to effectively prevent transmission of the deadly virus to vulnerable patients,” Fletcher said. He also emphasized that even though CMS did not previously require direct vaccination, employees of Medicare and Medicaid facilities have long been subject to employer or state vaccination requirements for the flu or hepatitis B virus.
Lawyers for two different sets of states contend that the CMS acted outside the scope of its authority when issuing the mandate because Congress never specifically authorized the agency to issue such a comprehensive rule. not authorized. They also accuse the agency of bypassing normal procedures, which would have allowed stakeholders to weigh in on the mandate.
Missouri Deputy Attorney General Jesus A. Ossete called the mandate “an unprecedented sweeping” and said it would create a crisis in health care facilities in rural America as it “forces millions of workers to choose between losing their jobs or complying.” shall “an unlawful federal mandate.”
He called health care workers who have fought the pandemic “heroes” and said some of them could soon be unemployed and stressed that the federal government had “the opportunity to force health care workers to undergo permanent medical procedures”. don’t have the right.”
Separately, Louisiana’s solicitor general, Elizabeth Murrill, representing a different group of states, said the mandate is also unconstitutional. She argued that Congress’s law-making power under the Constitution’s spending clause “rests on whether the state voluntarily and knowingly accepts the terms of the contract”.
In the case, she said, facilities accepting federal funds had no advance notice of the mandate. She also argued that Congress simply cannot authorize a federal agency to require vaccines for more than 10 million health care workers without a clear statement of authority.
“There is no question that mandating a vaccine for 10.3 million healthcare workers is something that should be done by Congress, not a government agency,” said the United States District Court for the Western District of Louisiana in the ruling against the Biden administration. said a judge. in November.
The judges agreed to an early hearing of the case with a short briefing schedule and it is not clear how soon they will act.
Correction: An earlier version of this story misquoted judges’ previous position on states’ efforts to mandate vaccines.