Court calls requirements “seriously flawed”


Protesters hold signs during a protest against Covid-19 mandates in front of the General Motors (GM) Tech Center in Warren, Michigan, the United States, on Wednesday, November 3, 2021.

Mathew Hatcher | Bloomberg | Getty Images

A federal appeals court has described President Joe Biden’s vaccine and testing requirements for private companies as “fatally flawed” and “surprisingly excessive”, arguing that the requirements are likely beyond the authority of the federal government and raise “serious constitutional concerns.”

The U.S. Fifth District Court of Appeals reiterated its decision to suspend implementation of the requirements in an opinion released Friday evening, yet another sign that they may not stand up to judicial review.

The appeals court, believed to be one of the most conservative in the country, originally suspended the requirements on Nov. 6 for review in response to challenges from the Republican attorneys general of Texas, Louisiana, Mississippi, South Carolina, and Utah, as well as several private companies.

While the court has not yet ruled on the constitutionality of the requirements, the three-member panel made it clear that the actions to remove the mandates “are likely to be successful on the matter”. They criticized the requirements as “a universal sledge hammer that hardly tries to account for differences in jobs (and employees)”.

The occupational health and safety agency, which oversees occupational safety for the Department of Labor, developed the requirements as part of the emergency agency established by Congress. This authority enables the agency to shorten the process of issuing safety and health standards in the workplace, which typically takes years.

OSHA can use its emergency powers when the Secretary of Labor determines that a new standard of safety or health is necessary to protect workers from a “serious hazard” from a new hazard. The judges asked Friday whether Covid poses a serious threat to all eligible workers, arguing that OSHA already has tools that it can use without a comprehensive standard of emergency safety.

The Biden administration asked the court on Monday to lift the hiatus, warning that delaying implementation would “likely cost dozens or even hundreds of lives a day” if the virus spreads. White House officials have repeatedly said that Covid is clearly a serious threat to workers, highlighting the appalling death toll from the virus and the high rates of transmission in counties across the United States

In the United States, more than 750,000 people have died from the virus and infected more than 46 million since the pandemic began, according to data from the Centers for Disease Control and Prevention. According to data from Johns Hopkins University, more than 1,000 Americans die from the virus every day and nearly 80,000, on average, become infected every day.

The White House has urged companies to move ahead with implementing the requirements, even as the legal drama unfolds in court. Companies with 100 or more employees have until January 4th to ensure that their employees receive the vaccinations required for a full vaccination. After this date, unvaccinated employees must present negative Covid tests weekly to enter the workplace. Unvaccinated employees must wear masks indoors in the workplace from December 5th.

The Biden government is facing a flurry of lawsuits aimed at overturning mandates. Republican attorneys general in at least 26 states have challenged the requirements in five federal appeals courts. The cases are grouped into a single court by randomly selecting from among the jurisdictions in which lawsuits have been filed. The Justice Department announced earlier this week that the random selection would take place on Tuesday at the earliest.

David Vladeck, a law professor at Georgetown University, told CNBC that there is a “high probability” that the case will end up in the Supreme Court, where there is a conservative majority.

“There are judges in the court who want to curb the administrative state, and this is a case where those concerns are likely to come to the fore,” Vladeck told CNBC on Monday.