Biden asks businesses to proceed with vaccine mandate after omicron variant arrives in U.S.

President Joe Biden on Thursday asked businesses to voluntarily move forward with the administration’s Covid-19 vaccine and testing requirements, even as the rule is challenged in court, after U.S. officials confirmed the first case of the omicron variant in the U.S.

“We’re asking businesses to step forward and do what’s right to protect our workers and to protect our communities, which is to put in place some sort of vaccination requirement or testing requirements for the workplace,” a senior administration official said.

The administration’s request comes after public health officials in California this week detected the first case in the U.S. of the omicron Covid variant. U.S. and international health officials are concerned that omicron, which has roughly 50 mutations, could prove more transmissible than past strains of the virus and may evade vaccine protection to some degree.

The Biden administration gave businesses with 100 or more employees until Jan. 4 to ensure their staff are either vaccinated against Covid, or submit a negative test weekly before entering the workplace. Unvaccinated employees were supposed to start wearing masks indoors at the workplace on Dec. 5.

However, the Occupational Safety and Health Administration suspended enforcement and implementation of the requirements last month, after the U.S. Court of Appeals for the Fifth Circuit halted the policy pending review. Judge Kurt D. Engelhardt, in an opinion for a three-judge panel, said the requirements were “fatally flawed” and raise “serious constitutional concerns”

Republican attorneys general, private businesses and industry groups such as the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business have sued to overturn the policy. Labor unions are asking the courts to expand the requirements to cover smaller businesses and protect more workers.

The more than two dozen lawsuits were transferred to the U.S. Court of Appeals for the Sixth Circuit last month, after the Biden administration asked a multidistrict litigation panel to consolidate the cases in a single court through random selection.

The Justice Department last week asked the the Sixth Circuit to immediately reinstate the vaccination and testing requirements. The motion was filed on Nov. 23, just days before the omicron variant would come to international attention. Health officials were already concerned about a possible winter Covid surge.

Biden administration officials told the court that “the threat to workers is ongoing and overwhelming.”

“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses. That is a confluence of harms of the highest order,” the Justice Department argued in its motion.

The Biden administration asked the court to at least reinstate the vaccine and testing requirements as a bridge to ensure workers are protected as the litigation plays out. The Sixth Circuit has not yet made a decision on whether to allow the policy to proceed.

The administration has also asked the court to adopt an expedited schedule in which oral arguments would take place as soon as possible after final briefs are filed on Dec. 29. The Justice Department told the court that a “swift resolution” is warranted because “the lives and health of thousands of American workers are at stake.”

OSHA, which polices workplace safety for the Labor Department, issued the vaccine and testing requirements under its emergency authority established by Congress. The agency can shortcut the normal rulemaking process if the Labor secretary determines that a new workplace safety standard is needed to protect workers from a grave danger. The White House has repeatedly argued that Covid poses such a danger, pointing to the staggering death toll and high levels of infection across the country.

Doctors, nurses, emergency room physicians and pharmacists called on businesses to proceed with the requirements last month. The coalition included the American Medical Association, the American College of Physicians, the American Academy of Pediatrics, the American College of Emergency Physicians, and the National League for Nursing among many others.

“We — physicians, nurses and advanced practice clinicians, health experts, and health care professional societies — fully support the requirement that workers at companies with over 100 workers be vaccinated or tested,” the groups said in a joint statement. “We encourage all businesses with 100 or more employees to not delay in implementing this standard.”