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Biden's vaccine-or-test rule for 84 million workers is back after court lifts stay

WASHINGTON, DC - OCTOBER 14: U.S. President Joe Biden speaks in the South Court Auditorium on the White House campus October 14, 2021 in Washington, DC. Biden spoke about the coronavirus pandemic and encouraged states and businesses to support vaccine mandates to avoid a surge in cases of Covid-19. (Photo by Drew Angerer/Getty Images)
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WASHINGTON, DC - OCTOBER 14: U.S. President Joe Biden speaks in the South Court Auditorium on the White House campus October 14, 2021 in Washington, DC. Biden spoke about the coronavirus pandemic and encouraged states and businesses to support vaccine mandates to avoid a surge in cases of Covid-19. (Photo by Drew Angerer/Getty Images)

A Biden administration rule — that requires workers at companies with 100 or more employees to be vaccinated against Covid or undergo weekly testing, starting Jan. 4 — is back on.

The 6th Circuit Court of Appeals lifted a stay on the rule Friday evening. The rule was blocked on Nov. 6, just one day after it was formally issued by the federal Occupational Safety and Health Administration (OSHA).

In dozens of lawsuits around the country, Republican states, businesses, religious groups and some individuals charged the Biden administration with overreach. Among their arguments: OSHA does not have the legal authority to issue a rule regarding a society-wide health concern that goes far beyond the workplace. Even if reducing the risk of Covid is compelling, it is not necessarily a "grave danger," as OSHA has declared it to be, they said. In addition, they argued that complying with the rule would be costly and could lead to worker shortages.

A three-judge panel of the 6th Circuit found these injuries asserted by the petitioners to be "entirely speculative," and the costs of delaying implementation of the rule to be comparatively high.

"Fundamentally, the [rule] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs," wrote Circuit Judge Jane B. Stranch, an Obama appointee.

"The harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy," she said.

The lifting of the stay comes just as the highly transmissible Omicron variant is wreaking havoc in Europe and the U.S. is bracing for a similar spread.

OSHA had estimated that the vaccinate-or-test rule could save more than 6,500 lives and prevent over 250,000 hospitalizations in the six months that it would be in effect.

In addition to the vaccine and testing requirements that are set to take effect Jan. 4, the rule requires companies to determine who among their workers are vaccinated and who are not, and to enforce a mask mandate for unvaccinated workers starting Dec. 6. It's unclear now whether that takes effect immediately.

The ruling is a big victory for the Biden administration vis a vis private employers. Its vaccine mandate for health care workers at facilities that receive Medicaid or Medicare funding remains blocked in about half the states and its vaccine mandate for federal contractors remains blocked nationwide.

Still, this ruling is not expected to be the final word. In all likelihood, the cases surrounding the federal vaccine rules will be heading to the U.S. Supreme Court soon.
Copyright 2021 NPR. To see more, visit https://www.npr.org.

Kate Howard is the managing editor of the Kentucky Center for Investigative Reporting.