The Biden administration asserted Monday that it can lawfully require employers to mandate employee vaccination or offer employees the option to mask and test. The administration reasoned that, amid an “extraordinary pandemic and a serious threat to employees,” the federal government can “address the grave dangers posed by COVID-19 in the workplace.”

Late last week, the Fifth Circuit temporarily enjoined the Biden administration’s business vaccine mandate. The Occupational Safety and Health Administration (OSHA) published the Emergency Temporary Standard (ETS), which required employers with more than 100 employees to mandate employee vaccination by January 4, 2022 or face fines. Republican attorneys general from several states filed suit, arguing that the ETS violates constitutional and statutory law. Subsequently, the Fifth Circuit blocked the ETS and ordered the US to respond to the petitioners’ stay motion within two days.

The US promptly responded, making three key arguments. The first argument was that petitioners’ requests for relief were premature because “most of their asserted harms are at least a month off.” Second, they argued that petitioners were unlikely to succeed on the merits because OSHA reasonably determined that the ETS is well-founded and necessary to address a grave danger. Finally, they argued that petitioners failed to prove “any injury that outweighs the injuries to the government and the public interest and that favors staying a Standard that will save thousands of lives.”

A few days before the Fifth Circuit blocked the ETS, a few states also sued the Biden Administration over its covid safety executive order. They argued that, under Alabama Association of Realtors, “[e]ven in a pandemic, ‘our system does not permit agencies to act unlawfully even in the pursuit of desirable ends.'” Indiana, Louisiana, and Mississippi attorneys general also shared that they will soon file suit to invalidate the ETS.

Still, US Department of Justice Spokesman Anthony Coley defended the ETS, stating: “The OSHA emergency temporary standard is a critical tool to keep America’s workplaces safe as we fight our way out of this pandemic. The Justice Department will vigorously defend this rule in court.”