Update: Coronavirus Vaccination Litigation against Biden Administration

The U.S. Justice Department filed its appeal on Nov. 23 before the 6th Circuit Court to reinstate the large private employer vaccination status requirement that the 5th Circuit had stayed after Republican governors and state attorneys general sued.

3 minute read

November 28, 2021, 5:00 AM PST

By Irvin Dawid


Coronavirus

Michael Vi / Shutterstock

"The Biden administration on Tuesday asked a federal appeals court to reinstate its coronavirus vaccination or testing requirement for private businesses 'as soon as possible' and to get rid of an earlier ruling that has temporarily blocked one of the White House’s signature policies, set to take effect in January, writes Ann E. Marimow, legal affairs reporter for The Washington Post on Nov. 23.

[Related post: "Court: Federal COVID-19 'Vaccine or Test-and-Mask' Mandate 'Fatally Flawed.'"]

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 [in Cincinnati].

Charlie Savage reported on the consolidation of "at least 34 lawsuits" [pdf] for The New York Times on Nov. 16

A court clerk for the U.S. Judicial Panel on Multidistrict Litigation randomly selected the Court of Appeals for the Sixth Circuit by drawing from a drum containing entries for the twelve regional courts of appeal, each of which has at least one related case pending. The procedure can be used to consolidate cases that are all raising the same issue.

"In a 52-page motion [pdf] filed on Tuesday, the Justice Department urged the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, to lift a judicial stay on proceeding with the rule while it is being challenged in court, saying the requirement would 'save thousands of lives and prevent hundreds of thousands of hospitalizations," reported Savage on Nov. 23.

The Occupational Safety and Health Administration, or OSHA, issued the “emergency” rule earlier this month at the direction of President Biden as one of several vaccine mandates he announced in September. The OSHA rule applies to employers with at least 100 workers, although it exempts those who work at home or exclusively outdoors.

[Related postBiden Orders Large Employers to Require Vaccination or COVID Testing, September 13, 2021]

"The conservative-leaning 6th Circuit could respond at any time," adds Marimow in the source article. "Regardless of its ruling, the case is likely to be decided by the Supreme Court."

Mandating vaccination yields results

"Ninety-two percent of federal employees and military personnel have received at least one dose of coronavirus vaccine while nearly 5 percent more have asked for exemptions on religious or medical grounds, the White House said Wednesday," reports Eric Yoder for The Washington Post on Nov. 24.

Figures from the Office of Management and Budget formed the most complete accounting to date of compliance with a requirement that federal employees be fully vaccinated as of Nov. 22...

Although the vaccination mandates issued by President Biden in September defined “fully vaccinated” as at least two weeks beyond the sole or second shot, depending on the vaccine, the data released Wednesday characterize employees as vaccinated if they have received at least one dose.

Unlike the OSHA rule that applies to large employers, the requirement for federal workers and contractors is an actual vaccination mandate as there is no provision for weekly Covid testing and masking.

Europe goes further

As posted Monday, Austria has signaled its intent to go further by passing a law that would require all residents to become vaccinated.

The idea may be spreading. Reporting on Nov. 22 on the coronavirus surge in neighboring Germany, Reuters noted that "more politicians backed the idea of compulsory vaccinations."

RelatedMandating and Verifying Vaccinations, July 19, 2021

Tuesday, November 23, 2021 in The Washington Post

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