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Labor unions sue Biden administration to expand Covid vaccine mandates and cover smaller businesses

Several of the nation’s largest labor unions are suing over President Joe Biden’s vaccine and testing requirements, not to overturn them, but to expand them to cover more businesses.

The United Food and Commercial Workers International Union and the AFL-CIO asked the U.S. Court of Appeals for the District of Columbia last week to review the requirements. The AFL-CIO is the largest federation of trade unions in the U.S., and the UFCW is the largest meatpacking and food processing union.

While the unions did not provide arguments in their petition, a spokesman for the food workers union told CNBC the group wants the mandates expanded to cover as many businesses as possible. The union also wants the new Labor Department rule to ensure employees don’t have to cover the costs of Covid testing and face masks. The Biden mandates don’t force companies to cover those costs.

The food workers’ union said in a statement to CNBC it wants to “strengthen the worker protections to ensure that as many workers are covered as possible, that frontline employees have a voice in how vaccine requirements are implemented, and that employees do not shoulder the cost of masks, testing, or other critical safeguards needed to keep workers and customers safe.”

The Service Employees International Union also challenged Biden’s vaccine and testing requirements last week in the U.S. Court of Appeals for the Second Circuit. SEIU local 32BJ represents 175,000 workers — primarily building security guards and cleaners — across New York, New England, New Jersey, parts of Pennsylvania, the D.C. metro area and Florida.

The service employees, in their petition, said the Biden policy “fails to adequately protect all workers who face a grave danger from COVID-19 exposure in the workplace.” SEIU 32BJ President Kyle Bragg told CNBC in a statement Friday that his local wants the mandates expanded to include all businesses.

“We believe that we all have to do our part to help our communities return to normal and that the COVID vaccine or test mandate should be broader in scope to also apply to employers with less than 100 employees,” Bragg said. “An exemption for these employers undermines the effort to protect public health.”

The Labor Department declined to comment on the unions’ lawsuits. Biden, in a speech shortly after Labor Day, said he intends to be “the most pro-union President leading the most pro-union administration in American history.”

The AFL-CIO, food workers and service workers unions lobbied White House officials in conference calls with the Office of Management and Budget last month to include broader protections in the mandates for workers, such as ventilation standards and requirements for businesses to ensure physical distancing where appropriate. The administration did not include those measures in its vaccination and testing policy.

The Occupational Safety and Health Administration, which will enforce the mandates for the Labor Department, has said it set the threshold at businesses with 100 or more employees because it was confident those companies had the tools in place to implement the requirements.

OSHA said it decided against mandating broader Covid mitigation measures across industries because doing so “is an extraordinarily challenging and complicated undertaking.” The agency said it had to “act as quickly as possible” to protect workers from the grave danger posed by Covid, and vaccination is “the single most efficient and effective means” to do so.

However, OSHA has indicated that it could expand the mandates to cover smaller businesses and is considering whether to add more requirements to protect employees. The agency is seeking information, through a public comment period, from companies that have broader protections in place as well as businesses with fewer than 100 employees that have vaccination and testing requirements.

The Biden administration now faces a legal tug of war over the vaccine and testing requirements. As labor unions push to have the courts expand the mandates, Republican attorneys general in at least 26 states have sued in five federal appellate courts to have the Biden policy overturned.

The Republican National Committee has also sued in the D.C. Court of Appeals to overturn the mandates. That case has been consolidated with the AFL-CIO and UFCW’s petition for review.

The U.S. Court of Appeals for the Fifth Circuit, considered one of the most conservative in the country, halted the requirements on Nov. 6, writing that the lawsuits “give cause to believe there are grave statutory and constitutional issues with the Mandate.”

The court reaffirmed its decision to delay the requirements on Friday evening, calling them “fatally flawed” and “staggeringly overbroad.” The court said the lawsuits seeking to overturn the requirements are likely to succeed.

The court-ordered halt came in response to suits filed by the Republican attorneys general of Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies.

The cases will be consolidated in a single court through random selection among the jurisdictions where petitions have been filed. The Justice Department said last week that the random selection will take place on Tuesday at the earliest.

The selection process could prove crucial to the future of the vaccine and testing requirements. While Republican attorneys general have filed in federal appellate courts with more GOP-appointed judges, the unions have filed in courts with more Democratic-appointed judges.

David Vladeck, a professor of law at Georgetown University, told CNBC last week that there’s a “high probability” the case could end up in the Supreme Court, where there’s a conservative majority.

The White House has told businesses to continue implementing the requirements as the legal drama plays out in the courts. Companies with 100 or more employees have until Jan. 4 to ensure their staff have received the shots required for full vaccination. After that date, unvaccinated employees must submit a negative Covid test weekly to enter the workplace. Unvaccinated employees must start wearing masks indoors at the workplace starting Dec. 5.

“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters last Monday. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”

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