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Biden’s vaccine-or-testing policy for private companies will be reviewed by three-judge panel

The Biden administration issued regulations for large private companies to require coronavirus vaccinations or regular testing for employees.
The Biden administration issued regulations for large private companies to require coronavirus vaccinations or regular testing for employees. (Marcio Jose Sanchez/AP)
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A federal appeals court on Wednesday rejected requests to initially review the Biden administration’s coronavirus vaccine or testing requirements for large private companies with a full complement of judges and will instead handle the case with the usual three-judge panel.

The decision divided the U.S. Court of Appeals for the 6th Circuit and drew sharp dissents from a pair of judges who used the opportunity to express deep concerns about the legality of the administration’s policy, which is set to take effect Jan. 4.

The policy requires companies with more than 100 employees to either mandate vaccinations or require weekly coronavirus testing and masks. The administration estimates the emergency rules will save more than 6,500 lives and prevent more than 250,000 hospitalizations.

Several companies, organizations, individuals and 27 states filed legal challenges to the Occupational Safety and Health Administration rules, which apply to about 80 million workers.

A separate appeals court in November put the policy on hold before the slate of cases was consolidated before the 6th Circuit.

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The dissents from the procedural step read more like final opinions on the underlying merits of the case. Whatever the three-judge panel eventually decides will almost certainly be appealed to the Supreme Court.

Chief Judge Jeffrey S. Sutton called the policy a “blunt national vaccine mandate” and “unprecedented assertion of administrative power.” The private companies, he said, are likely to prevail in their challenge to the emergency regulations, which he said should remain blocked.

The Labor Department, Sutton wrote, does not have sweeping power to regulate all health risks and exceeded its authority by imposing a vaccine-or-test regulation. OSHA has the authority to set emergency temporary standards, but the judge said there is nothing “temporary” about vaccination because it cannot be undone.

“Authority to regulate the workplace with protective gear designed to handle on-the-job exposures to substances and tailored to the circumstances of that job is one thing; authority to require medical procedures or tests for two-thirds of American workers, no matter their work circumstances or individual risks, is quite another,” he wrote in the 26-page dissent.

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Judge John K. Bush similarly labeled the policy a “de facto national vaccine mandate” for millions of workers and recounted the history of U.S. government involvement in vaccination since the 1800s to cast doubt on the administration’s authority for the current regime.

OSHA “would turn history on its head,” he wrote. “It proposes not a partnership in which the federal government simply encourages vaccination, but an unfunded mandate in which half our workforce must either become vaccinated or subject itself to regular out-of-pocket testing.”

The court split 8 to 8 on the question of whether to initially take the case with a full panel of 16 judges. A majority vote would have been required for the full court to take the case.

Judge Karen Nelson Moore backed the decision to leave the “important, accelerated” case in the hands of a three-judge panel, which she said has “already devoted significant time to this case.”

“The massive docket and profusion of briefs,” she wrote, “. . . require focused consideration by a devoted panel.”