Dozens of legal challenges primarily from Republican-led states, private employers and conservative groups have been consolidated before a single court, the U.S. Court of Appeals for the 6th Circuit.
Before the cases were combined this month, a different set of judges halted the policy, finding that the Labor Department exceeded its authority and caused “economic uncertainty” and “upheaval” for businesses that “threatens to decimate their workforces.”
The Justice Department said in its filing Tuesday that the federal government should be permitted to address “the grave danger of Covid-19 in the workplace.”
The conservative-leaning 6th Circuit could respond at any time. Regardless of its ruling, the case is likely to be decided by the Supreme Court.
Under the Occupational Safety and Health Administration rules, private employers with more than 100 workers must require staffers to be vaccinated or face weekly testing and mandatory masking. The requirements are more flexible than many similar policies put in place by private companies and state and local governments but have faced a series of legal challenges.
OSHA invoked a rarely used emergency power to issue the policy, which is expected to cover 84 million workers. The Biden administration estimates the rules will save more than 6,500 lives and prevent more than 250,000 hospitalizations over a six-month period.
If the Ohio-based 6th Circuit is not inclined to reinstate the policy, the government said the court should still narrow the earlier ruling from the Louisiana-based 5th Circuit to require the masking-and-testing policy to remain in effect while the litigation continues.
Such steps are necessary, the government said, because of the “extraordinary and ongoing threat to employee safety in the workplace, and the proven ability of masking and testing to mitigate that threat.”
A group of mostly Republican attorneys general have asked the 6th Circuit to expedite review of the case by initially considering it with a full complement of judges instead of the typical three-judge panel.
The states told the court that the case is one of “exceptional importance” that will “affect the personal health decisions of tens of millions of Americans, coast to coast.”
“It will determine whether private companies — many of which are still struggling to survive the economic carnage inflicted by COVID-19 — must invest resources helping the federal government run a mass-vaccination program,” according to the filing from 27 states, led by Ohio Attorney General Dave Yost.
The Justice Department did not take a position on the request for initial review by a full, en banc court.
In its ruling against the Biden administration earlier this month, the 5th Circuit repeatedly referred to the policy as a “mandate.”
“Rather than a delicately handled scalpel, the Mandate is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” according to the opinion from a panel of three judges nominated by Republican presidents.
The Biden administration took issue with that characterization Tuesday, noting that employers are free to allow employees who choose not to be vaccinated and to instead comply with the testing-and-masking requirements.
The potential cost of compliance for businesses, the government said, does not outweigh the government’s interest in protecting employers and workers by preventing deaths and hospitalizations.