The White House said Monday that companies should move forward with President Joe Biden’s vaccine and testing requirements for private companies, despite a federal appeals court ordering a temporary suspension of the rules.
“People shouldn’t wait,” White House deputy press secretary Karine Jean-Pierre told reporters during a briefing. “They should keep moving and make sure their workplace is vaccinated.”
The U.S. 5th District Court of Appeals, considered one of the most conservative appeals courts in the country, issued the requirements on Saturday, stating that “the petitions suggest that the mandate has serious legal and constitutional problems.”
The Biden administration has until Monday evening to respond.
The court-ordered hiatus came a day after the requirements went into effect and started the countdown for companies with 100 or more employees to ensure that their employees received the vaccinations required for a full vaccination by January 4th a weekly negative Covid-19- Test to enter the workplace. All unvaccinated workers must wear face masks at their indoor workplaces from December 5th.
Republican attorneys general in Texas, Louisiana, Mississippi, South Carolina, and Utah, as well as several companies, requested the hiatus. They argue that the requirements exceed the powers of the labor protection agency, which will enforce the mandates, and amount to an unconstitutional delegation of power from Congress to the executive branch.
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 had also challenged the requirements in the DC appeals court.
It is unclear which court will ultimately decide the case. If multiple applications are submitted to at least two courts, the cases in one of these courts will be pooled through a lottery system. The Justice Department said in a filing on Monday that the lottery is expected to take place on or about November 16.
David Vladeck, a law professor at Georgetown University, said there was a “high chance” the case would go to the Supreme Court.
“There are judges in the court who want to curb the administrative state, and this is one case where those concerns are likely to come to the fore,” Vladeck told CNBC.
OSHA, which oversees occupational safety for the Department of Labor, developed the vaccine and testing requirements under the emergency agency established by Congress. This authority enables the agency to shorten the process of issuing occupational safety standards, which normally takes years.
Labor Department’s top attorney Seema Nanda said Friday that the Biden government “is fully prepared to defend this standard in court.”
Nanda said the law “explicitly gives OSHA the power to act quickly in an emergency if the agency determines that workers are at great risk and a new standard is needed to protect them.”
Nanda also said the vaccine and testing requirements “supersede any state or local requirements that prohibit or limit an employer’s power to require vaccinations, face-covering or testing.” Texas Governor Greg Abbott issued an executive order last month banning vaccine mandates in the Lone Star State.
OSHA Emergency Workplace Safety Standards have had a mixed track record in court. Prior to the vaccine requirements, the agency had issued 10 such standards in its 50-year history. Four of these standards have been suspended or waived by the courts, and a fifth has been partially vacated.
More than 750,000 people have died of Covid in the United States since the pandemic began, according to the Centers for Disease Control and Prevention. According to the Johns Hopkins University, more than 1,100 people die of Covid every day, and more than 71,000 people are newly infected every day.
“If that is not a great danger, I do not know what else is,” Jean-Pierre told reporters on Monday.
– CNBC’s Kevin Breuninger contributed to this report