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An official with the Chamber of Commerce on Monday advised businesses targeted by a COVID-19 vaccine mandate from the Biden administration should go ahead and implement a plan as called for by the directive despite a federal appeals court ruling that has put the mandate on hold.
The Chamber’s vice president of employment policy, Marc Freedman, told CNBC that affected companies and businesses should go ahead and consider the Emergency Temporary Standard that was issued earlier this month by the Occupational Safety and Health Administration (OSHA) as a binding order.
“Ultimately the courts are going to decide, but employers still need to take this as a live ETS until it is definitively shut down,” said Freedman. “They should not bank on the preliminary actions of the 5th Circuit.”
Last week, the Biden administration took the same position.
“People should not wait,” said White House Deputy Press Secretary Karine Jean-Pierre during a press briefing. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
Both remarks came after the U.S. 5th Circuit Court of Appeals in New Orleans ordered the mandate paused, then reaffirmed its previous ruling in recent days, instructing the Labor Department, which oversees OSHA, to “take no steps to implement or enforce the Mandate until further court order.”
The court found that the mandate “exposes [petitioners] to severe financial risk” and “threatens to decimate their workforces (and business prospects).” The court also noted that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.”
“The Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” the ruling further noted.
Circuit Judge Kurt D. Engelhardt also wrote that the mandate is “fatally flawed” and “staggeringly overbroad.” And while courts have yet to rule on the mandate’s constitutionality, Engelhardt made it clear he believes petitioners will succeed on the merits of their cases.
President Biden first announced the mandate Sept. 9, which applies to businesses with 100 or more employees. Companies are required under the rule to implement a mandatory COVID-19 vaccination program or require unvaccinated employees to demonstrate weekly they are not positive for the virus.
More than two dozen GOP-controlled states immediately vowed to sue the administration, claiming constitutional restraints prohibit the federal government from issuing the mandate to the private sector. Biden’s initial order also applied to federal workers and federal contractors.
But there is pushback coming from other sectors as well. For instance, the National Association of Wholesaler-Distributors warned the administration recently that following through on the mandate would lead to job losses and would worsen the current supply chain bottlenecks.
“NAW urges that the Executive Order’s implementation be revised to avoid this calamity and provide alternatives to promote safety, including testing, and consider a short-term delay to provide time to carry out these changes and to avoid further supply chain disruptions in the coming months,” said Eric Hoplin, president and CEO of the NAW, in a letter to Biden.
Other organizations including the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business, have also filed suit against the mandate in the 5th Circuit.
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