The Biden administration’s coronavirus vaccine mandate for employers with 100 or more workers is on again — for now.

The U.S. 6th Circuit Court of Appeals in Cincinnati on Friday granted a Department of Justice motion to dissolve a stay of the vaccinate-or-test requirement. The ruling sets up a showdown before the U.S. Supreme Court; several suits asking the high court to overturn Friday’s decision have already been filed.

The 5th Circuit Court of Appeals in New Orleans had in November issued the stay of the mandate from the Occupational Safety and Health Administration, part of the Department Labor.

OSHA’s on-again mandate is an Emergency Temporary Standard, or ETS, and requires businesses with at least 100 employees to require employees to get vaccinated against COVID-19 or submit to weekly coronavirus testing. It also requires the unvaccinated to wear masks at indoor workplaces.

A three-judge panel from the 6th Circuit, with one dissenter, ruled that OSHA had not overstepped its authority.

“The ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States.”
Judge Jane Branstetter Stranch
U.S. 6th Circuit Court of Appeals

“The ETS 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 Judge Jane Branstetter Stranch in the majority opinion. Judge Julia Smith Gibbons concurred.

Judge Joan L. Larsen wrote the dissenting opinion.

“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” Larsen wrote, quoting a recent Supreme Court decision.

The 2-1 ruling rejected the arguments in 37 cases that had been filed against the mandate, and consolidated before the 6th Circuit, that challenge the legality of the ETS on various grounds, including its constitutionality and whether Secretary of Labor Martin J. Walsh had the authority to issue it.

Larsen wrote that at least one challenge to the legality of the ETS was likely to succeed and that, in her opinion, the labor secretary “lacks statutory authority to issue the mandate.”

Associated Builders and Contractors Inc., a trade association for the construction industry, is among the plaintiffs appealing to the Supreme Court.

The ETS “creates excessive compliance costs and regulatory burdens for job creators and threatens the national economy at a time when it is already contending with rising materials prices, supply-chain disruptions and workforce shortages,” said Ben Brubeck, the ABC vice president of regulatory, labor and state affairs, in a press release.

“ABC continues to encourage vaccination but rejects the damaging regulatory overreach that exceeds the Department of Labor’s statutory authority,” Brubeck added.

Because the mandate’s pause may have created uncertainty, OSHA is giving affected employers more time to comply. A Friday statement from OSHA said it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance.” Enforcement had been set to start earlier.

Meanwhile, a White House Executive Order that most federal contractors require employees to be vaccinated against COVID-19 remains on pause after a federal court in Georgia issued a temporary injunction on December 7. If that injunction is lifted by another court, it would apply to contractors doing $250,000 or more worth of business with the federal government and would not include a coronavirus-testing alternative.

There were an average of 132,659 new coronavirus cases reported per day in the U.S. during the seven-day period that ended Sunday, according to the Centers for Disease Control.