- The White House on Monday said businesses should move forward with the requirements despite the court-ordered pause.
- The U.S. Court of Appeals for the 5th Circuit, considered one of the most conservative appellate courts in the country, halted the requirements Saturday pending review.
- Republican attorneys general in at least 26 states have challenged President Joe Biden’s vaccine and testing requirements in five different U.S. appeals courts.
The White House on Monday said businesses should move forward with President Joe Biden’s vaccine and testing requirements for private businesses, despite a federal appeals court ordering a temporary halt to the rules.
“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters during a briefing. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
The U.S. Court of Appeals for the 5th Circuit, considered one of the most conservative appellate courts in the country, halted the requirements Saturday pending review, writing that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.”
The Biden administration has until Monday evening to respond.
The court-ordered pause came a day after the requirements went into effect, starting the countdown for businesses with 100 or more employees to ensure their staff have received the shots required for full vaccination by Jan. 4. After that date, unvaccinated workers must submit a negative Covid-19 test weekly to enter the workplace. All unvaccinated workers must start wearing face masks indoors at their workplaces starting Dec. 5.
The Republican attorneys general in Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several companies, requested the pause. They argue that the requirements exceed the authority of the Occupational Safety and Health Administration, which will enforce the mandates, and amount to an unconstitutional delegation of power to the executive branch by Congress.
Republican attorneys general in at least 26 states have challenged Biden’s vaccine and testing requirements in five different U.S. appeals courts since last Friday. The Republican National Committee said it has also challenged the requirements in the D.C. Court of Appeals.
It’s unclear which court will ultimately decide the case. When multiple petitions are filed in at least two courts, the cases are consolidated in one of those courts through a lottery system. The Justice Department said in a filing Monday that the lottery is expected take place on or around Nov. 16.
David Vladeck, a professor of law at Georgetown University, said there’s a “high probability” that the case will end up before the Supreme Court.
“There are justices on the court who want to rein in the administrative state and this is a case in which those concerns are likely to come to the fore,” Vladeck told CNBC.
OSHA, which polices workplace safety for the Labor Department, developed the vaccine and testing requirements under emergency authority established by Congress. That authority allows the agency to shortcut the process to issue workplace safety standards, which normally takes years.
The Labor Department’s top lawyer, Seema Nanda, said on Friday that the Biden administration is “fully prepared to defend this standard in court.”
Nanda said the law “explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”
Nanda also said the vaccine and testing requirements supersede “any state or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.” Texas Gov. Greg Abbott issued an executive order last month banning vaccine mandates in the Lone Star State.
OSHA emergency workplace safety standards have a mixed track record in court. Prior to the vaccine requirements, the agency had issued 10 such standards in its 50-year history. Courts halted or overturned four of those standards, and a fifth was partially vacated.
More than 750,000 people have died in the U.S. from Covid since the pandemic began, according to data from the Centers for Disease Control and Prevention. More than 1,100 people a day die from Covid, and more than 71,000 people a day are newly infected, according to data from Johns Hopkins University.
“If that’s not a grave danger, I don’t know what else is,” Jean-Pierre told reporters Monday.
OSHA suspends enforcement of COVID-19 vaccine mandate for businesses
The Occupational Safety and Health Administration (OSHA) is suspending enforcement of the Biden administration’s COVID-19 vaccine mandate for large private businesses after a federal appeals court upheld a stay on it last week.
OSHA said in a statement published on its website Friday night that while it is confident in its power to protect workers amid the pandemic, it is suspending activities related to the mandate, citing the pending litigation.
“The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS [Emergency Temporary Standard] ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” OSHA said.
President Biden announced in September that the administration was rolling out a new rule that would require all private employers with 100 or more employees to mandate vaccines or weekly testing for all personnel, a guideline that has the potential to impact nearly 80 million workers.
Earlier this month the administration set Jan. 4 as the deadline for qualifying private employers to start mandating the vaccine or requiring weekly testing. The rule was developed by OSHA.
In a 22-page ruling last week, the 5th U.S. Circuit Court of Appeals wrote that the administration’s COVID-19 vaccine and testing mandate was “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction.
The court said OSHA should “take no steps to implement or enforce the mandate until further court order.”
The case originated when Texas Attorney General Ken Paxton (R), along with the states of Louisiana, Mississippi, Utah and South Carolina, filed a lawsuit against the Biden administration over the vaccine mandate in October, requesting a preliminary and permanent injunctive relief to stop the mandate from being enforced. The lawsuit also asked that the mandate be declared unlawful.
Earlier this month, the federal appeals court ordered a temporary halt on the mandate, but the Department of Justice then requested that the halt be lifted, contending that the administration has the legal authority to require COVID-19 vaccines or testing for larger companies and that the states that are challenging the mandate have not shown that their claims outweigh the harm of stopping of rule.
The court, however, upheld the stay, which prompted OSHA’s announcement that it is suspending enforcement of the rule.
More than two dozen state attorneys general and other groups are also challenging the mandate in court.
Despite the court’s ruling, however, the White House urged businesses to continue implementing the guidance for COVID-19 vaccines and testing.
Pfizer, BioNTech, Moderna making $1,000 profit every second
Pfizer, BioNTech and Moderna are making combined profits of $65,000 every minute from their highly successful COVID-19 vaccines while the world’s poorest countries remain largely unvaccinated, according to a new analysis.
The companies have sold the vast majority of their doses to rich countries, leaving low-income nations in the lurch, said the People’s Vaccine Alliance (PVA), a coalition campaigning for wider access to COVID vaccines, which based its calculations on the firms’ own earning reports.
The Alliance estimates that the trio will make pre-tax profits of $34 billion this year between them, which works out to over $1,000 a second, $65,000 a minute or $93.5 million a day.
“It is obscene that just a few companies are making millions of dollars in profit every single hour, while just two percent of people in low-income countries have been fully vaccinated against coronavirus,” Maaza Seyoum of the African Alliance and People’s Vaccine Alliance Africa said.
“Pfizer, BioNTech and Moderna have used their monopolies to prioritise the most profitable contracts with the richest governments, leaving low-income countries out in the cold.”
Pfizer and BioNTech have delivered less than one percent of their total supplies to low-income countries while Moderna has delivered just 0.2 percent, the PVA said.
Currently, 98 percent of people in low-income countries have not been fully vaccinated.
The three companies’ actions are in contrast to AstraZeneca and Johnson & Johnson, which provided their vaccines on a not-for-profit basis, though both have announced they foresee ending this arrangement in future as the pandemic winds down.
PVA said that despite receiving public funding of more than $8 billion, Pfizer, BioNTech and Moderna have refused calls to transfer vaccine technology to producers in low- and middle-income countries via the World Health Organization, “a move that could increase global supply, drive down prices and save millions of lives.”
“In Moderna’s case, this is despite explicit pressure from the White House and requests from the WHO that the company collaborate in and help accelerate its plan to replicate the Moderna vaccine for wider production at its mRNA hub in South Africa,” the group said.
Informers key in enforcing Biden vaccine mandate
To enforce President Joe Biden’s forthcoming COVID-19 mandate, the U.S. Labor Department is going to need a lot of help. Its Occupational Safety and Health Administration doesn’t have nearly enough workplace safety inspectors to do the job.
So the government will rely upon a corps of informers to identify violations of the order: Employees who will presumably be concerned enough to turn in their own employers if their co-workers go unvaccinated or fail to undergo weekly tests to show they’re virus-free.
What’s not known is just how many employees will be willing to accept some risk to themselves – or their job security – for blowing the whistle on their own employers. Without them, though, experts say the government would find it harder to achieve its goal of requiring tens of millions of workers at companies with 100 or more employees to be fully vaccinated by Jan. 4 or be tested weekly and wear a mask on the job.
“There is no army of OSHA inspectors that is going to be knocking on employers door or even calling them,” said Debbie Berkowitz, a former OSHA chief of staff who is a fellow at Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor. “They’re going to rely on workers and their union representatives to file complaints where the company is totally flouting the law.’’
Jim Frederick, the acting chief of OSHA, told reporters that this agency will focus on job sites “where workers need assistance to have a safe and healthy workplace.”
“That typically comes through in the form of a complaint,” Frederick added.
Critics warn that whistleblowers have often faced retaliation from their employers and that OSHA has offered little protection when they do.
The new mandate, which Biden announced last week, is the administration’s most far-reaching step yet to prod more Americans to get a vaccine that has been widely available since early spring. The mandate will cover an estimated 84 million employees.
The president called the move necessary to combat an outbreak that has killed 750,000 Americans and that continues to spread. Companies that fail to comply will face fines of nearly $14,000 per “serious’’ violation. Employers found to be “willful’’ or repeat violators would be subject to fines of up to ten times that amount.
The mandate has run into furious opposition, though, from leaders of mainly Republican-led states who have condemned the plan as an unlawful case of federal overreach and who immediately challenged the vaccine-or-test requirements in court. On Saturday, the Biden administration endured a setback when a federal appeals court in New Orleans temporarily halted the mandate, saying it posed “grave statutory and constitutional issues.”
Should the mandate survive its legal challenges, though, the task of enforcing it would fall on OSHA, the small Labor Department agency that was established 50 years ago to police workplace safety and protect workers from such dangers as toxic chemicals, rickety ladders and cave-ins at construction sites.
OSHA has jurisdiction in 29 states. Other states, including California and Michigan, have their own federally approved workplace safety agencies. These states will have an additional month – until early February – to adopt their own version of the COVID mandate, equal to or tougher than OSHA’s.
For a task as enormous as enforcing the new vaccine mandate, OSHA and its state “partners’’ are stretched thin. Just 1,850 inspectors will oversee 130 million workers at 8 million job sites. So the agencies must rely on whistleblowers.
OSHA urges workers to first bring unsafe or unhealthy working conditions to the attention of their employers “if possible.’’ Employees could also file a confidential safety complaint with OSHA or have a case filed by a representative, such as a lawyer, a union representative or a member of the clergy. But they have no right to sue their employer in court for federal safety violations.