Biden administration touts vaccine mandate after court rips it as ‘sledgehammer,’ not ‘scalpel’

The Biden administration on Sunday defended its now-stalled rule requiring COVID-19 vaccinations for employees at businesses with 100 or more workers, effective Jan. 4.

Surgeon General Vivek Murthy said “it would be a setback for public health” if federal courts continue to block the Occupational Safety and Health Administration’s Nov. 5 emergency temporary standard.

“If we want to protect our workers, these vaccine requirements will ultimately help us,” Dr. Murthy told “Fox News Sunday.”

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit on Friday kept in place its stay on the Biden administration’s vaccine mandate, saying it found “a multitude of reasons” to believe a legal challenge is “likely to succeed on the merits.”

Texas Attorney General Ken Paxton said Sunday he is “perfectly comfortable” defending his state’s challenge to the federal mandate.

“Right now we have OSHA guidelines that have not been authorized by Congress,” Mr. Paxton, a Republican, told “Fox News Sunday.” “They absolutely have no authority to do this.”

In the 5th Circuit ruling, Judges Kurt D. Engelhardt, Edith Jones and Stuart Kyle Duncan noted that an emergency temporary standard (ETS) has never before been used in OSHA’s 50-year history. The ETS would require workers to be vaccinated or face weekly COVID-19 testing and a mask-wearing requirement at work.

In a sharply worded 22-page opinion, the panel said the federal mandate “grossly exceeds OSHA’s statutory authority.”

Writing for the panel, Judge Engelhardt, a Trump appointee, blasted the broad sweep of the proposed ETS: “[R]ather than a delicately handled scalpel, 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 vaccination mandate drew a raft of legal challenges across the nation, including many from religious organizations and Christian employers who argued that implementing the ETS would compel them to invade workers’ medical decisions and track those choices.

When first challenging the OSHA mandate, David Hacker, litigation director at the public interest group First Liberty Institute, said faith-based clients the Daystar Television Network and the American Family Association couldn’t abide by the mandate.

“As religious ministries, our clients cannot in good conscience force their own employees to violate their deeply held beliefs regarding vaccines,” Mr. Hacker said at the time.

The OSHA mandate “threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” Judge Engelhardt wrote. Individuals and companies forced to obey the mandate would each be “irreparably harmed in the absence of a stay,” while OSHA would suffer “no harm whatsoever” while the matter is litigated further.

The appellate judge asserted that the Occupational Safety and Health Act of 1970 “was not … intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”

Responding to the Nov. 12 ruling, First Liberty Institute President Kelly Shackelford said his group would press federal courts to end the mandate altogether.

“We are thrilled that the Fifth Circuit has stopped this mandate for now. We remain dedicated to ending it permanently,” Mr. Shackelford said in a statement. “The President is supposed to protect people of faith, not conscript private employers into his ideological war.”

Meanwhile Sunday, in an appearance on CBS’ “Face the Nation,” Colorado Gov. Jared Polis sidestepped questions about whether he should impose a statewide vaccine mandate or new pandemic-related restrictions.

Mr. Polis, a Democrat in his first term, said his state’s private sector and tourism industry are doing an adequate job on their own in reducing the chances of spreading the coronavirus.

“If you’re vaccinated, your risk is one-tenth or one-twelfth what it was during the highest peak before. And for folks who are vaccinated, you know, this is still a higher risk than usual in the background,” Mr. Polis said. “But this is like the endemic state of what this virus will always be. It’s no longer a pandemic for you.

“If you’re unvaccinated, this is the most dangerous time for you, no matter where you live in the country or in the world, because of the highly contagious nature of the delta variant. The most important thing you can do is get vaccinated’” the governor said. “But if you continue to be unvaccinated, please be careful, wear a mask and don’t gather in large indoor areas around others.”

The White House did not respond to a request for comment.

A Labor Department spokeswoman referred questions to the Justice Department, which did not reply to an email requesting comment.

• Haris Alic contributed to this report.