In a court filing, the Biden administration is warning that the Mississippi-backed lawsuit asking courts to block enforcement of the president’s employer COVID-19 vaccine mandate “would likely cost dozens or even hundreds of lives per day.”
“Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds,” the Biden administration told a federal appeals court yesterday.
Mississippi, Utah, Louisiana, and South Carolina joined a coalition of businesses and interest groups to sue to block the employer mandate Biden issued in September. It requires businesses with 100 or more employees to require either COVID-19 vaccination or weekly COVID-19 testing. That affects about one-fifth of the U.S. workforce.
In a Nov. 5 statement, Mississippi Attorney General Lynn Fitch said Biden had “vastly overreached his authority” and that his mandates violate “vital principles, including state sovereignty, the rule of law, and religious liberty.”
On Nov. 6, a three-judge panel at the U.S. 5th Circuit Court of Appeals in New Orleans temporarily blocked enforcement of the mandate, saying “the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.”
Fitch responded that day, saying her office was “grateful that the court recognized the serious constitutional concerns raised by this mandate” and that she will “continue fighting to put a permanent stop to this unprecedented federal overreach.”
In response yesterday, though, lawyers for the U.S. Department of Labor and the Occupational Safety and Health Administration said the mandates’ opponents have not “shown that their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”
The court, federal lawyers said, should allow enforcement of the mandates to resume. Under Biden’s rules, employees have until Dec. 7 to get fully vaccinated in order to comply with the mandate. In response to Biden’s executive order, OSHA issued regulations implementing the employer vaccine mandates.
Opponents of the vaccine mandate, including Mississippi, previously argued that OSHA is allowed under law to address issues involving”agents” and “hazards,” but not viruses. The Biden administration’s filing yesterday says the mandate’s opponents “misunderstands that viruses are agents.”
“Petitioners’ only textual argument is that COVID-19 is a ‘disease,’ not an ‘agent’ or ‘hazard.’ But like a carcinogen, for example, a virus is an ‘agent’ that causes disease and constitutes a ‘hazard,’” the government’s Nov. 8 reply says. “Indeed, the statute acknowledges that OSHA can require ‘immunization,’ including to ‘protect the health and safety of others.’”
The Biden administration’s filing notes that Merriam-Webster’s dictionary defines “virus” as an “infectious agent.” OSHA regulations in the past, the filing says, have also defined “toxic substances or harmful physical agents” to include “biological agent[s] (bacteria, virus, fungus, etc.).”
The order blocking the mandate that Mississippi and other opponents request, the filing says, “would cause significant harm.”
“Even limiting its analysis to employees aged 18-64 who elect vaccination, OSHA estimates that the Standard will ‘save over 6,500 lives and prevent over 250,000 hospitalizations’ over a six-month duration,” the filing says. “Accounting for workers aged 18-74, those estimates rise to 13,847 lives saved and 563,102 hospitalizations prevented—an average of roughly 77 lives and 3,128 hospitalizations per day.”
But those figures “underestimate the impact of stay because they estimate only the protection provided by vaccination to workers who become vaccinated” and not lower transmission risks for unvaccinated workers who opt for testing instead; “do not account for ‘avoided COVID-19 cases among family and friends that would occur due to exposure to an infected worker’ or prevented breakthrough infections”; and “includes none of the benefits from reducing strains on healthcare systems, slowing the emergence of new variants, and combating the pandemics ongoing effects on the economy.”
Fitch and other opponents of the mandate have told the courts that the mandate could harm employers economically and possibly cost them employees. But the Biden administration’s filing pointed to data showing that the numbers of employees quitting rather than complying with vaccine mandates is in the low single-digits.
“Petitioners also disregard the likely benefit to employers,” the filing says. “Workplace outbreaks can force shutdowns and cause significant losses. Even one-off cases can be costly and disruptive, and ‘reduce absenteeism due to fewer COVID-19 illnesses and quarantines’ means savings for employers.”
In her Nov. 6 statement, Fitch said she encourages “everyone to consider vaccine.”
“But the decision is yours, and the president should not force anyone to vaccinate for fear of losing their jobs, especially on the cusp of the holidays.”
Fitch suggested the mandate is less necessary because “the number of new cases, hospitalizations, and deaths continues to drop.”
Cases have declined since the peak of the delta-variant wave over the summer, which was the fourth major wave of COVID-19 in Mississippi since the pandemic began. Yesterday, though, Mississippi State Health Officer Dr. Thomas Dobbs noted in a tweet that the Mississippi State Department of Health is closely monitoring a “rebound in testing volume last week.”
— thomas dobbs (@TCBPubHealth) November 8, 2021
Most counties have “declining transmission,” Dobbs tweeted, “but sadly COVID is not over yet. Last year COVID rebounded right after Oct 31 / Halloween celebration. Be safe.” After cases fell in August and September of 2020, cases rebounded in the late fall Mississippi experienced the deadliest surge of the pandemic until that point over the winter. This summer’s delta variant wave eclipsed it, however.
The three judges considering the case and who temporarily blocked the mandate are all Republican appointees. Former President Donald Trump appointed Judge Kurt D. Engelhardt and Kyle Duncan, while former President Ronald Reagan appointed Edith Jones. Two of those judges, Engelhardt and Jones, joined a controversial decision in August not to issue a temporary stay for a Texas six-week abortion ban in August that empowers citizens to enforce it through civil suits; Duncan recused himself in that case.
Even though Mississippi’s top leaders, including Gov. Tate Reeves, oppose Biden’s COVID-19 vaccine mandates, Mississippi boasts the strictest childhood vaccination requirements in the country for disease like mumps, measles and rubella.
“Joe Biden’s vaccine mandates are one of the most shocking attacks on personal liberty we have seen in this country during my lifetime,” said Reeves, who as Mississippi Senate president in 2015 presided over the unanimous passage of a bill to incarcerate tuberculosis patients who refuse treatment. “I am a strong supporter of the COVID vaccines and commend the Trump administration’s efforts to develop it. … The federal mandates, however, threaten every Mississippians’ individual liberties. They are nothing short of tyranny.”
Biden’s employer vaccine mandate includes several exemptions, including for medical reasons, disability and “sincerely held religious beliefs.” Mississippi’s childhood vaccination laws, which are a requirement for attending public schools, allow exemptions only for verified medical purposes and do not allow religious exemptions.
Biden’s COVID-19 vaccine mandates do not affect children. But voluntary COVID-19 vaccination is now available for children ages 5 and older after trials showed Pfizer’s COVID-19 vaccine is safe and effective for young children. Previously, only children 12 and older could receive the vaccine. It has not yet been authorized for use in children 4 or younger.