Coronavirus Briefing: What Happened Today

The case against vaccine mandates.,


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ImageDaily reported coronavirus cases in the United States, seven-day average.
Daily reported coronavirus cases in the United States, seven-day average.Credit…The New York Times

President Biden’s vaccine mandate for large businesses is facing a challenge in court that could turn out to be a procedural blip, or the first step in the unraveling of the entire measure.

A three-judge panel from the U.S. Court of Appeals for the Fifth Circuit in Louisiana temporarily blocked the mandate over the weekend, but the stay won’t have an impact for now because the new rules have yet to come into effect. Businesses have until Jan. 4 to mandate Covid vaccinations for their workers or require them to undergo weekly testing.

The legal challenge was brought by a coalition of plaintiffs, including several employers and Republican-controlled states.

“The argument that they’re making is that it’s not constitutional,” said my colleague Lauren Hirsch, who covers business for The Times. “They’re arguing that the Occupational Safety and Health Administration, which is the part of the Labor Department that’s instituting this rule, doesn’t have the authority to pass it. They’re saying it would need to be done through legislation by Congress, instead.”

The Biden administration filed its response to the court challenge yesterday, arguing that the rule was necessary to protect workers from the pandemic and was well grounded in law.

The last time that O.S.H.A. issued a similar emergency standard was in 1983 to lower the legal level of asbestos exposure in the workplace. The following year, the Fifth Circuit overturned the regulation, saying the agency didn’t prove the order was necessary.

But in the administration’s response yesterday, the Justice Department argued that “non-regulatory options have proved vastly inadequate.” Companies have already tried many other methods to manage the risk of the virus in offices — including incentivizing vaccines and masks — and yet the ongoing pandemic still makes them potentially unsafe spaces.

“Many lawyers that I talked to seem to think that the rules will be upheld,” Lauren said. “The Fifth Circuit may issue a permanent stay, at which point the administration may bring it to the Supreme Court.”

In the end, the legal battle may not have much effect on the rules, as companies may just move ahead with implementing them. Some trade groups who are unhappy with the mandate have told Lauren they’re still encouraging companies to begin implementing the rules, because they don’t think they will be overturned, and putting them in place requires planning.

“A lot of companies wanted to implement mandates, they just didn’t want to be the first mover and were worried about litigation,” Lauren said. “But now they can just blame the government. It’s sort of like blaming Mom, saying she’s making you leave a party, but secretly, you just want to leave the party.”

Want to know more? The Times has answers to some of the most commonly asked questions about the vaccine mandate. You can also submit yours here.

Pfizer and BioNTech asked federal regulators today to expand authorization of their coronavirus booster shot to include all adults over the age of 18. The F.D.A. is considered likely to grant the request, perhaps before Thanksgiving.

In mid-September, an advisory board of outside experts to the F.D.A. voted against a similar request from Pfizer and instead recommended booster shots on an emergency basis for those 65 and older or at high risk of Covid-19 because of their medical conditions or jobs.

Those categories were still broad enough to cover at least 60 percent of the population. Some experts have argued that the case for booster shots for the general population is stronger now, citing data from Israel that shows that the aggressive booster campaign there has dramatically limited rates of severe disease, hospitalization and death. They also point out that maintaining complicated eligibility categories may not work anyway.

Moderna is expected to soon request a broadening of its emergency use authorization for its booster dose. All Johnson & Johnson recipients are eligible for a second shot as a booster.

More booster news:

I started nursing chrysanthemums in my small garden three years ago and wanted to invite my writer friends over to appreciate the autumn flowers. We had to let go of the idea of inviting anyone over when the virus became rampant last year. This past weekend, we finally made it happen: Friends gathered in the sunny Saturday afternoon, looked at a variety of still blooming chrysanthemums and enjoyed two or three delicious Maryland blue crabs while sipping a glass of red wine in our kitchen. It was an old tradition of Chinese scholars to get together, climb mountains, appreciate the chrysanthemums’ beauty, drink wine, and read and write poems in the fall time. We were happy we tasted a little of that tradition while envisioning that the pandemic would finally be over before the chrysanthemums start blooming again next fall.

— Aiguo Ying, Syosset, N.Y.

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